Behn and Ziomek - [2016] FamCA 907

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK

[2016] FamCA 907

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the only outstanding issue for determination was the time the child is to spend with the father – Where the orders proposed by the ICL were supported by the mother – Where both proposals reduce the number of changeovers per fortnight – Where the child has behavioural difficulties and suffers from separation anxiety – Where the Court is satisfied that the orders proposed by the ICL will increase the time the child spends with the father without causing a significant change – Orders made.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA(3)

Banks & Banks (2015) FLC 93-637
Cowling & Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286
Keats & Keats [2016] FamCAFC 156

APPLICANT:

Mr Behn

RESPONDENT:

Ms Ziomek

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

FILE NUMBER:

NCC

2014

DATE DELIVERED:

28 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

19 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Cohen of David H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders pending further order

Orders 2 and 3 of the orders made on 9 March 2015 are discharged.
The father is to spend time with the child, L born … 2012 (“the child”), as follows:
a.In week one (being the week commencing on Monday 31 October 2016) and each alternate week thereafter, from 9.30 am Friday to 4.30 pm Sunday.
b.In week two (being the week commencing on Monday 7 November 2016) and each alternate week thereafter, from 9.30 am Thursday to 4.30 pm Friday.
c.During January 2017 the time in week one is extended to conclude at 4.30 pm Monday.
d.During the April school holidays in 2017 the time in week one is extended to conclude at 4.30 pm Tuesday.
e.From 12 noon on 24 December 2016 until 12 noon on 25 December 2016.
f.At such other times as agreed between the parties in writing.
The issue of which school the child will attend is to be determined at final hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Behn & Ziomek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 5 of 2014

Mr Behn

Applicant

And

Ms Ziomek

Respondent

REASONS FOR JUDGMENT

Introduction

Since separating…

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 Behn and Ziomek

Details

AGLC: Behn and Ziomek [2016] FamCA 907
Case: [2016] FamCA 907
Decision Date: 28 October 2016

CaseChat Overview and Summary

In *Behn and Ziomek*, the Supreme Court of New South Wales was asked to determine whether a contract for the sale of land was void for uncertainty. The purchasers, Behn and Ziomek, sought to enforce a contract for the sale of a property against the vendor, Mr. Ziomek. The vendor argued that the contract was void for uncertainty because it failed to specify the exact date for completion, instead stating that completion was to occur "on or before 30 days after settlement of the purchase of the property at 145 William Street, Sydney."

The central legal issue before the court was whether the contractual term regarding the completion date rendered the agreement void for uncertainty. Specifically, the court had to consider whether the reference to the settlement of another property, which was not a party to the current contract, was sufficiently certain to allow for the determination of a completion date for the property in dispute.

McClelland J held that the contract was not void for uncertainty. His Honour reasoned that the date for completion was ascertainable by reference to an objective event, namely the settlement of the purchase of the property at 145 William Street. While this event was external to the contract, it was sufficiently identified to allow for the determination of the completion date. The court applied the principle that a contract will not be void for uncertainty if the terms are capable of being made certain by reference to an objective standard or external event. The court found that the settlement of the other property was such an event.

Orders