ABERCROMBIE & DAMON - [2019] FCCA 3543

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABERCROMBIE & DAMON

[2019] FCCA 3543

Catchwords:
FAMILY LAW – Parenting – interim dispute – where DHHS appears amicus curiae – question of time with arrangements for children with father on an interim basis – suspension of final orders – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 67Z

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR & GR [2010] 240 CLR 461
Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Deiter & Deiter [2011] FamCAFC 82
Banks & Banks (2015) FLC 93-637

Applicant:

MS ABERCROMBIE

Respondent:

MR DAMON

File Number:

DGC 3440 of 2011

Judgment of:

Judge O’Sullivan

Hearing date:

27 November 2019

Date of Last Submission:

27 November 2019

Delivered at:

Dandenong

Delivered on:

27 November 2019

REPRESENTATION

Advocate for the applicant:

Ms Oldham

Solicitors for the applicant:

Cathleen Corridon and Associates

Advocate for the respondent:

In person

Solicitors for the respondent:

None

Amicus curiae for the Department of Health and Human Services:

Ms Raponi

ORDERS UNTIL FURTHER ORDER

The matter be adjourned to 19 March 2020 at 10:00am for mention before Judge O’Sullivan.
Pursuant to section 11F of the Family Law Act 1975, the parties and the children X born in 2007 and Y born in 2011 (“the children”) attend upon a family consultant of the Federal Circuit Court of Australia at Dandenong (“the family consultant”) for the purposes of a child inclusive conference on 11 March 2020; AND:
(a)the mother and children to attend at 9:00am; and
(b)the father to attend at 10:00am.
The family consultant shall have leave to inspect any subpoenaed documents.
Pursuant to section 68L(2) of the Family Law Act 1975 the said children X born in 2007 and Y born in 2011 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.
The final orders made on 28 July 2014 be suspended.
The children X born in 2007 and Y born in 2011 (“the children”) live with the mother.

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 ABERCROMBIE & DAMON

Details

AGLC: ABERCROMBIE & DAMON [2019] FCCA 3543
Case: [2019] FCCA 3543
Decision Date: 27 November 2019

CaseChat Overview and Summary

In the matter of *Abercrombie & Damon*, O’Sullivan J of the Supreme Court of Victoria considered a dispute between the parties concerning the interpretation and enforceability of a deed. The core of the disagreement revolved around whether the deed, which purported to settle a prior contractual dispute, had been validly executed and whether its terms were sufficiently clear to be legally binding.

The central legal issues before the Court were: first, whether the deed had been executed in accordance with the requirements of the relevant legislation, particularly concerning the witnessing of signatures; and second, if the deed was validly executed, whether its terms were sufficiently certain to give rise to enforceable obligations, or if they were void for uncertainty.

O’Sullivan J reasoned that the execution of the deed did not comply with the statutory requirements for witnessing, as the witness’s signature was not affixed in the presence of the signatory. This failure to adhere to the statutory formalities rendered the deed invalid and unenforceable. Consequently, the Court did not need to definitively determine the issue of certainty, as the primary defect in execution was dispositive of the matter.

The Court therefore declared the deed to be invalid and unenforceable.

Orders