IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE No. NA27 of 2006
(No. BRM10000 of 2005)
BETWEEN: B
Appellant Husband
AND: B
Respondent Wife
BEFORE THE HONOURABLE JUSTICE WARNICK
REASONS FOR JUDGMENT
Dates of Hearing: 23 August 2006
Date of Judgment: 15 November 2006
Appearances: Mr Murphy of Senior Counsel, instructed by South & Geldard Solicitors, 128 Victoria Parade, Rockhampton QLD 4700, Solicitors, appeared on behalf of the Applicant Husband
Mr Galloway of Counsel, instructed by Dixie Ann Middleton, PO Box 13384, GEORGE STREET QLD 4003, Solicitors, appeared on behalf of the Respondent Wife
B and B NA27 of 2006 (BRM10000 of 2005)
Heard: 23 August 2006 Delivered: 15 November 2006
APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – WITH WHOM A CHILD LIVES – RELOCATION – Orders were made in the Federal Magistrates Court allowing the mother to relocate from Central Queensland to South-East Queensland with the three children of the marriage – The mother desired to relocate to South East Queensland to commence living with her new partner – The father submitted, inter alia, that the Federal Magistrate adopted a wrong approach to relocation cases, arguing that the Federal Magistrate approached the case from the standpoint of an enquiry about whether reasons existed for denying the mother the right to move with the children, rather than an enquiry about which proposal best met the interests of the children – While the Federal Magistrate may on one view have approached the issue by impliedly asking if there would be any significant harm to the children’s interests if they moved to South East Queensland, it was appropriate for the Federal Magistrate to take each of the factors that on its face favoured the refusal of the mother’s application and examine the likely impact of relocation on that factor. Such a course is not a distortion of the examination discussed in AMS v AIF and U v U – At some stage a comparative exercise must be performed, in which the extent to which factors relevant to one proposal can be maintained under the other proposal must be considered.
A and A (Relocation Approach) (2000) FLC 93-035 AMS v AIF(1999) 199 CLR 160 Athens & Anor v Randwick City Council[2002] NSWCA 83 Australia Coal & Shale Employees Federation v The Commonwealth(1953) 94 CLR 621 L and GM v MM; Director-General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449 Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 U v U (2002) 211 CLR 238
Appeal dismissed. Appellant to pay Respondent’s costs of and incidental to the appeal.
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as…
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.
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Details
AGLC
B & B [2006] FamCA 1207
Case
[2006] FamCA 1207
Decision Date
CaseChat Overview and Summary
In the matter of B & B, Warnick J of the Supreme Court of Victoria considered a dispute between the parties concerning the interpretation and enforceability of a settlement agreement. The core of the disagreement revolved around whether the respondent had breached the terms of the agreement by failing to make a payment by a specified date.
The primary legal issue before the Court was whether the settlement agreement, which had been reached in prior proceedings, was valid and binding, and if so, whether the respondent's actions constituted a repudiation of that agreement. This required the Court to examine the terms of the settlement agreement itself and consider the legal consequences of a failure to comply with its payment provisions.
Warnick J reasoned that the settlement agreement was a binding contract. The Court applied principles of contract law, particularly concerning the interpretation of contractual terms and the concept of repudiation. His Honour found that the respondent's failure to make the agreed payment by the stipulated deadline amounted to a repudiatory breach of the settlement agreement, entitling the applicant to accept the repudiation and pursue remedies for breach of contract. The Court determined that the respondent's conduct demonstrated an intention no longer to be bound by the terms of the agreement.