When a child is retained by one parent
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
From time to time the media will report that a child has been retained by one parent.
If the child is in Australia the parent who does not have the child can bring an application with the Family Law Courts to try and recover the child. This is known as a ‘recovery order’.
It is necessary to present any existing orders, where the child usually lives, when the child ought to have been returned, where the child could be, steps that have been taken to locate the child, why it is in the child’s best interest to be returned and the likely impact on the child if a recovery order is not made. Read the rest of this entry »
Failure to pay costs – can it be contempt?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Most of us probably associate “contempt of Court” with things like witnesses refusing to answer questions when under oath – perhaps a product of watching too much television! However a person can also be guilty of contempt for failing to comply with costs orders.
In December 2015 the Supreme Court sentenced a Mr David Mahaffy to 10 months imprisonment for contempts which included a deliberate failure to pay costs orders made against him and his company in relation to proceedings both in the District Court and in the Supreme Court. Read the rest of this entry »
Pub fights and damages
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Mr MacDougall was assaulted in a hotel by two men and seriously injured. Both men had been involved in the assault but, after Mr MacDougall had fallen to the floor, the second man kicked him savagely in the face. The assaults were intentional acts; without any lawful excuse and were not in self-defence. Mr MacDougall sued for and obtained general damages (commonly referred to as ‘pain and suffering’ or non-economic loss damages). He had also claimed “aggravated” and “exemplary” damages, but each of these claims was unsuccessful. He appealed to the Court of Appeal.
Generally speaking, ‘aggravated’ damages are compensatory in nature and are awarded for injury to a plaintiff’s feelings caused by insult, humiliation and the like, over and above what would otherwise have been awarded. It is sometimes said that where there is aggravating conduct, damages can be “topped up”. The Court of Appeal held it was appropriate to do so in this case and awarded an additional $10,000.00 in favour of MacDougall for aggravated damages. Read the rest of this entry »
Misunderstood issues in dismissal claims
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
This article deals with two specific issues that arise from time to time in unfair dismissal claims. They are firstly, whether an unfair dismissal remedy can be awarded where there is a valid reason for the dismissal; and secondly, the role of a worker’s own misconduct in the calculation of any compensation that is awarded.
Each of these issues is neatly ventilated in the recent decision of Anderson v Thiess Pty Limited [2015] FWCFB 478. Briefly, Mr Anderson circulated a racially/religious offensive email on a work email system. It was sent to a wide circulation list including a number of Thiess employees. At least one was offended and reported it to senior management. A workplace investigation was initiated and Mr Anderson was ultimately dismissed. He brought an application for unfair dismissal relief. The Deputy President who heard it at primary hearing, concluded that Thiess had a valid reason to dismiss Mr Anderson, but that it was nonetheless harsh and/or unfair. Reinstatement was considered inappropriate, but compensation was awarded. The compensation was reduced in part because of Mr Anderson’s own conduct. Read the rest of this entry »
When do I apply for bank refinance in a property settlement?
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
If you want to acquire your former partner’s/spouse’s interest in your home and thereafter assume liability for the joint debt, you should start making enquiries from the bank about their requirements and your capacity to meet those requirements as early as possible – and certainly before you make your spouse an offer. There is little point in proposing such a settlement option if you cannot refinance the joint loan and fund any additional settlement payment.
When spouse parties hold a joint loan account they are liable both in their own right and jointly. This means that the bank is entitled to recover the debt from both of the parties jointly and from each of them individually. Read the rest of this entry »
Property division 20 years after separation
by Rose Laffan
Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law
In the recent case of Vega & Riggs the parties were married in 1979, separated in 1990 and were divorced in November 1992. In accordance with the Family Law Act any application for property division was therefore required to have been made by November 1993.
No such application was made then but in 2015 the husband commenced proceedings in relation to a property the parties still owned together.
In deciding if the application could be considered the Court stated that two questions needed to be determined: 1) whether hardship would be caused to the husband and 2) should the Court exercise its discretion to grant leave. Read the rest of this entry »
The court: the third party to your agreement
Ashleigh John is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law.
Usually an agreement requires only the consent of the two parties, but not so in family law matters.
In family law parenting and property matters parties are regularly invited to reach agreement and ‘determine their own fate’; however even when agreement is reached the Court must ensure that all agreements satisfy the Family Law Act, and may reject an agreement, notwithstanding that the orders may be sought by both parties.
In parenting matters a Court must be satisfied that any orders are in the “best interests of the child”. Read the rest of this entry »