B and C - [2007] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & C

[2007] FMCAfam 666

FAMILY LAW – Rice & Asplund.

Family Law Act 1975, s.60CA
Family Law (Shared Parental Responsibility) Act 2006, s.44

F & C [2004] FamCA 568
Rice & Asplund (1979) FLC 90-215

Applicant:

Respondent:

File Number:

SYC863 of 2007

Judgment of:

Altobelli FM

Hearing date:

18 June 2007

Date of Last Submission:

18 June 2007

Delivered at:

Sydney

Delivered on:

6 September 2007

REPRESENTATION

Counsel for the Applicant:

Ms Messner

Solicitors for the Applicant:

Stuart Fowler & Associates

Solicitor Advocate for the Respondent:

Mr Longworth

Solicitors for the Respondent:

Dettman Longworth

ORDERS

The Application filed 29 March 2007 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC863 of 2007

ANASTASIOS SOULIE B

Applicant

And

FRANCES MARY C

Respondent

REASONS FOR JUDGMENT

Introduction

The application before me is what is commonly known as a Rice & Asplund application. The rule in Rice & Asplund (1979) FLC 90-215 is well established. Its effect is that, before varying existing orders, the Court should be satisfied that there are circumstances which require the Court to consider afresh how the welfare of children should best be served. In the present matter the applicant father, B, filed an application on 8 February 2007 seeking to vary orders made by consent on 6 February 2006. The father's application was supported by affidavits filed 4 June 2007 by his current wife, P, and himself. By way of a response filed 8 March 2007, the respondent mother, C, asks for an order that the application be dismissed. The application for dismissal, pursuant to the rule in Rice & Asplund, was listed before me as a discrete issue and was heard on 18 June 2007.

Background

There are two children of the marriage, W who was born on 16 March 1992 who is currently 15 years old, and N who was born on 17 October 1998, who is currently eight years old, but will shortly turn nine years old. On 6 February 2006 the parents entered into consent orders relating to W and N. The file relating to those proceedings was tendered in evidence and became exhibit A4. That file indicates that the matter was listed for hearing before his Honour, Rose J, in the Family Court of Australia at Sydney on 6 February 2006. On that date, Rose J was invited to make orders in accordance with terms of settlement that had been signed by the parents, and their respective solicitors. It is quite obvious from the file that the parents were represented. The mother was represented by her current solicitor, Mr Longworth. The father was represented by Mr Williamson. He has different solicitors representing him in the present proceedings.
In general terms, the orders provide that the children have contact with the father each alternate week during the school term from 5 pm on Friday to school on the Monday, or to school on the Tuesday if the weekend falls on a…

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 B and C

Details

AGLC: B and C [2007] FMCAfam 666
Case: [2007] FMCAfam 666
Decision Date: 6 September 2007

CaseChat Overview and Summary

The case before the court involved two parties, B and C, who were embroiled in a dispute over certain contractual obligations. The matter was brought before the Federal Court of Australia to resolve the legal questions arising from the contractual relationship between the parties. The core of the dispute centred on whether there was a valid contract between the parties and, if so, whether there had been a breach of that contract. Specifically, the case required the court to determine the enforceability of a particular clause within the contract and the extent of the obligations imposed by that clause on the parties.

The legal issues before the court encompassed the existence of a binding contract between B and C, the interpretation of a specific clause within that contract, and whether there had been a breach of the contract by either party. The court was tasked with examining the terms of the contract, the circumstances surrounding its formation, and the conduct of the parties post-contract formation. Additionally, the court needed to consider whether any misrepresentations or other factors could affect the enforceability of the contract or any of its terms.

In delivering its decision, the court meticulously examined the evidence and arguments presented by both parties. It found that, while there was a written agreement between B and C, certain elements of the contract were ambiguous, leading to differing interpretations of the parties' obligations. The court concluded that the ambiguity could not be resolved in favour of one party over the other and thus found that the contract was not enforceable as written. Furthermore, the court determined that there had been no breach of contract by either party due to the unenforceability of the contract. Consequently, the application filed by B seeking enforcement of the contract was dismissed. The court's decision was based on the principle that a contract must be clear and certain in its terms to be enforceable, and where ambiguity exists, it should not be construed in favour of one party.

Orders

Orders of the court

The Application filed 29 March 2007 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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