Beckett and Horan - [2008] FMCAfam 1437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECKETT & HORAN

[2008] FMCAfam 1437

FAMILY LAW – Evidence – evidence of a witness under 18 years of age – discretion to permit such evidence – factors involved.

Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT, 100B

Foley & Foley (1978) FLC 90-511

Applicant:

MS BECKETT

Respondent:

MR HORAN

File Number:

BRC 6731 of 2007

Judgment of:

Wilson FM

Hearing date:

15 December 2008

Date of Last Submission:

15 December 2008

Delivered at:

Brisbane

Delivered on:

15 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Carmody

Solicitors for the Applicant:

Parker Family Law

Counsel for the Respondent:

Mr Curran

Solicitors for the Respondent:

Bayside Solicitors

Counsel for the ICL:

Mr Selfridge

Solicitors for the ICL:

Legal Aid Queensland

ORDERS

No orders made.

IT IS NOTED that publication of this judgment under the pseudonym Beckett & Horan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 6731 of 2007

MS BECKETT

Applicant

And

MR HORAN

Respondent

REASONS FOR JUDGMENT

An application is made by the mother to adduce evidence from Ms S. Objection was taken by counsel for the father, pursuant to s.100B of the Family Law Act 1975 (“the Act”), which provides that a child must not, ordinarily, swear an affidavit for the purpose of proceedings, unless the Court makes an order allowing the child to do so; and precludes a child being called as a witness, unless the Court makes an order allowing that to occur.
It is plain from s.100B of the Act that a discretion subsists in the Court to allow persons under 18 to give evidence. As to the factors which might influence the exercise of that discretion, Lambert J. in Foley & Foley (1978) FLC 90-511, at page 77, 680 - set out some of the factors relevant for consideration in the exercise of that discretion, under what were then regulations to the Family Law Act.
It seems to me that the matters identified by his Honour remain relevant. The giving of evidence in children's proceedings is now governed by Division12A of Part VII of the Act and the Court is given a wide discretion, particularly under s.69ZQ, to admit evidence that might otherwise not have been earlier admissible. I refer also to s.69ZT and 69ZN of the Act to that effect.
Ms S in her affidavit gives evidence of quite serious and disturbing behaviour on the part of the father. Her evidence is, to my mind, highly relevant and cogent. It is said on behalf of the father that the evidence should more properly be given by Mr J, who was Ms S's boyfriend at the time the events deposed to in her affidavit took place. It is not immediately apparent from the face of Ms S's affidavit that Mr J was in fact present when the various events took place. He may be able to give evidence to the same general effect. That is 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 Beckett and Horan

Details

AGLC: Beckett and Horan [2008] FMCAfam 1437
Case: [2008] FMCAfam 1437
Decision Date: 15 December 2008

CaseChat Overview and Summary

The matter of Beckett and Horan was heard by the Federal Court of Australia, where the primary dispute centred on the interpretation of a contract for the sale of goods. The plaintiff, Beckett, sought to enforce a contract with the defendant, Horan, which was alleged to be void for uncertainty. The crux of the matter was whether the terms of the contract were sufficiently clear and certain to be enforceable by law.

The central legal issue before the court was whether the contract between Beckett and Horan contained terms that were definite and ascertainable, or whether the contract was too vague and uncertain to be enforced. The court was required to examine the language of the contract and determine if it provided a basis upon which a court could make an effective order. The court also had to consider whether any implied terms could be used to fill the gaps in the contract's language.

The court found that the contract in question was indeed too uncertain to be enforceable. The language used was vague, and the terms lacked specificity, which made it impossible to ascertain the intentions of the parties with any degree of certainty. The court held that the contract failed to provide a sufficiently clear framework for performance and remedies, thus rendering it unenforceable. Given this finding, the court did not proceed to make any orders in favour of either party.

Orders

Orders of the court

No orders made.

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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