Think Foley's

Michael Stanton and Julia Kretzenbacher review section 138 of the Uniform Evidence Acts, which deals with improperly or illegally obtained evidence. In this presentation, we will review the history and background in relation to the common law discretion, the Australian Law Reform Commission reports on the law of evidence that led to the introduction of the Uniform Evidence Acts, and the text and purpose of section 138, including the factors relevant to the balancing exercise that must be undertaken by judicial officers. We will consider relevant cases from the High Court, the Court of Appeal and the Trial Division of the Supreme Court of Victoria.

Jeanette Swann and Chiara Bryan explore that question in the context of reproductive technology and changing concepts of family. They examine the relevant provisions of the Family Law Act, including section 60H, and discuss the High Court case of Masson & Parsons, testing the principles of that case against various factual hypotheses and family configurations. They also ask the question, how many parents can a child have? A quirky but related point is considered, being the allocation of parental responsibility to children diagnosed with gender dysphoria who are also Gillick competent. All up, our commentators conclude that while Masson & Parsons gives certainty to the operation of section 60H and the definition of a “parent”, there are still unanswered questions and manifest scope for legislative reform to ensure that all Australian families are treated equally before the law.

Marcus Hoyne and Priya Wakhlu provide an overview of the key areas of reform and outline what practitioners must know in operating under the new regime.  On 17 November 2020, royal assent was given to the Victorian legislation amending the Defamation Act. These reforms are consistent with similar legislation which has passed or is expected to be passed in other Australian jurisdictions shortly. These reforms constitute a significant overhaul of Australian defamation law. 

Simon Fuller and Alex Finemore address a number of ethical issues often faced by family lawyers including making serious allegations in Affidavit material, how to assess a client’s legal capacity, what to do when a client has lost capacity and our ongoing obligation of confidentiality. The purpose of this session is to provide guidance about how to navigate these ethical issues and avoid being faced with charges of professional misconduct or civil action brought by a disgruntled client.

Rae Sharp and Joel Tito review the practicalities of raising constitutional points in criminal proceedings including giving notice, costs and urgent relief and procedural requirements. 

Sam Tovey and Kate Ballard provide a guide to indictable driving offences.

Lucy Line discusses what employers need to know about employees’ use of traditional and online media. Lucy examines recent cases where workers in the private and public sectors have sued their employers after having been dismissed for their media use. With reference to the Fair Work Act, Lucy discusses what claims can be brought and what courts will consider in assessing the strength of a claim. With the popularity of social media, this session helpfully unpacks how employers can lawfully regulate and control the use of media by employees, and highlights to what extent employees are entitled to do as they like online, outside of working hours.

Julian R Murphy discusses the modern approach to statutory interpretation with a particular focus on how courts interpret criminal statutes. The presentation covers general principles as well as specific presumptions of interpretation, including the principle of legality and the principle requiring that criminal statutes are interpreted strictly.

Emma Swart and Johannes Schmidt discuss section 79A, in particular section 79A sub-section 1a and sub-section 1A of the Family Law Act 1975 varying and setting aside final orders in relation to property of a marriage (section 90SN for de facto relationships). They then take you to a recent case extending time to apply under section 37A to review a Registrar’s decision and how that can be used to set aside final consent property orders. They start with a brief look at the issues in applying for leave out of time under section 44 sub-section 3 and section 44 sub-section 5, relevant not only to situations where there are no orders at all but also relevant to considerations of delay in bringing an application under section 79A or section 37A and consider the special rule 16.05 which only applies in the Federal Circuit Court.

Mark McKillop and Amanda Carruthers discuss details of the Personal Property Securities Act, why we have it, when it applies, how to use it, and the tips and traps every practitioner needs to know.