Lacroix v Lacroix - [2015] TASSC 42

[2015] TASSC 42

COURT: SUPREME COURT OF TASMANIA

CITATION: Lacroix v Lacroix [2015] TASSC 42

PARTIES:  LACROIX, Adrian
  v
  LACROIX, Chantelle

FILE NO:  196/2015
DELIVERED ON:  3 September 2015
DELIVERED AT:  Hobart
HEARING DATE:  31 August 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Other pre-hearing procedures – Notice to accused of court appearance – Necessity – Respondent before court on application to extend operation of order – Advised of imminent application for fresh order – Sealed copy of new application not served.

Family Violence Act 2004 (Tas), s 31(7).
Justices Act 1959 (Tas), s 110(2)(ab).
Aust Dig Magistrates [1106]

REPRESENTATION:

Counsel:
             Applicant:  R J Broomhall
             Respondent:  J Bourke
Solicitors:
             Respondent:  Blissenden Lawyers

Judgment Number: [2015] TASSC 42
Number of paragraphs: 31

Serial No 42/2015
File No 196/2015

ADRIAN LACROIX v CHANTELLE LACROIX

REASONS FOR JUDGMENT BLOW CJ

3 September 2015

This is a motion for the review of a family violence order made by a magistrate, Mr S Mollard. The course of the proceedings before him was quite unusual. Mr Lacroix contends that he was denied procedural fairness.
The order in question was made on 5 March 2015. On 7 March 2014 an earlier family violence order was made against Mr Lacroix, for the protection of Ms Lacroix, by a magistrate. That order was made by consent. Mr Lacroix made no admissions on that occasion as to the conduct that Ms Lacroix complained of. The magistrate ordered that that first order was to remain in force for a period of 12 months.
On 23 February 2015 Ms Lacroix made an application for an extension of the first family violence order. By virtue of s 20(3) of the Family Violence Act 2004, a court may not entertain an application for the extension of a family violence order "unless satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied". The written material submitted with the extension application did not suggest that there had been any such substantial change.
The extension application came before the learned magistrate on 5 March 2015. Both parties were represented by counsel. Counsel for Mr Lacroix, Mr Chopping, told the learned magistrate that any extension would be opposed, and that it was contended that there was no proper basis for an extension. The magistrate invited Ms Lacroix's counsel to reconsider her application and file a different one. He suggested that she lodge an application for a new family violence order, and then make an oral application to revoke the existing one, so that he could consider the issues in the light of any information disclosed in an application for a fresh order. Counsel for Ms Lacroix indicated that she would do that. The magistrate then said, "Mr Lacroix heard me say that, so he's effectively on notice that that may well occur in the course of the morning and taking care of the service requirements [sic]."
After that Ms Bourke…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lacroix v Lacroix

Details

AGLC: Lacroix v Lacroix [2015] TASSC 42
Case: [2015] TASSC 42
Decision Date: 3 September 2015

CaseChat Overview and Summary

In the Magistrates Court of Victoria, Lacroix v Lacroix was heard. The respondent, a party to the case, questioned the necessity of receiving a notice to appear in court for a matter related to a family law order. The case was heard by a magistrate who had to determine if the respondent was adequately informed of an impending application for a fresh order, despite the sealed copy of the new application not being served.

The primary legal issue was whether the respondent had been given sufficient notice of the court's proceedings. The court examined if the respondent was adequately informed of the imminent application for a fresh order when they were already before the court on an application to extend the operation of an existing order. The court had to consider whether the respondent's presence in court on the extension application was sufficient notification of the fresh application.

The court found that the respondent had indeed been adequately informed of the fresh application. It was held that the respondent's presence in court on the application to extend the operation of the order, coupled with the oral advice provided by the court, constituted sufficient notice. The sealed copy of the new application not being served was not a critical factor in determining the respondent's awareness of the fresh application. The court emphasised that the respondent had been given the opportunity to be heard and respond to the fresh application, which was the essence of procedural fairness. The court's decision underscored the importance of ensuring that parties are given a fair opportunity to respond to court applications, even in the absence of formal written notice in some circumstances.

Orders