APPEAL – children – relocation to Japan – whether change in children’s wishes constituted significant change of circumstances – weight to be given to children’s wishes – whether children’s wishes influenced by father – whether appropriate weight given to the children’s attachment to the mother – whether appropriate weight given to the likely effect of change of the children’s living arrangements and the disadvantages of living in Japan – whether sufficient weight given to the disadvantage of Japan not being a signatory to the Hague Convention on Child Abduction – whether the approach in A v A: Relocation Approach (2000) FLC 93-035 of setting out each relevant s 68F(2) factor, the relevant evidence and the submissions with particular attention to how each proposal has advantages and/or disadvantages for that factor must be strictly followed in light of U v U (2002) 211 CLR 238 at 260 – whether the benefit to be derived by a child from sibling relationships is a matter which could be subject of judicial notice – whether a ‘circuit breaker’ approach by making an interim order for allowing a one year relocation appropriate – evidence relating to the father’s credibility as a witness and non-disclosure of financial affairs – whether appropriate that the father pay interim child maintenance of $250 per week per child whilst the children were with the mother in Australia and spousal maintenance of $300 per week whilst children remain living with the mother in Australia prior to their departure to Japan

House v The King (1936) 55 CLR 499

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Gronow v Gronow (1979) 144 CLR 513

CDJ v VAJ (1998) FLC 92-828

Rice v Asplund (1979) FLC 90-725

King v Finneran (2001) FLC 93-079

Bennett and Bennett (1991) FLC 92-191

A v J (1995) FLC 92-619

R and R: Children’s Wishes (2000) FLC 93-000

H v W (1995) FLC 92-598

A v A: Relocation Approach (2000) FLC 93-035

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

U v U (2002) 211 CLR 238

Hevi Lift (PNG) v Etherington [2005] NSWCA 42

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Rutherford and Rutherford (1991) FLC 92-255

Aarons v Knowles (1995) FLC 92-627

Gilmore and Gilmore (1993) FLC 92-353

Smith and Grey (1993) FLC 92-366

Emamy and Marino (1994) FLC 92-487

Reed CJ and Reed RD and…

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: Bolitho & Cohen [2005] FamCA 458
Case: [2005] FamCA 458
Decision Date: 8 June 2005

CaseChat Overview and Summary

The case of *Bolitho & Cohen* concerned a dispute between the parties regarding the interpretation and enforceability of a settlement agreement. The matter came before the Supreme Court of New South Wales.

The central legal issue before the Court was whether the settlement agreement, which purported to resolve all claims between the parties, was valid and binding, or whether it was vitiated by a fundamental misunderstanding or misrepresentation concerning the extent of certain liabilities. The Court was required to determine the intention of the parties at the time of entering into the agreement and the legal effect of their conduct thereafter.

The Court's reasoning focused on the principles of contract formation and the requirements for a binding settlement. It considered the evidence presented by both parties regarding their understanding of the terms and the circumstances surrounding the negotiation and execution of the agreement. The Court applied established legal principles relating to mutual mistake and misrepresentation, assessing whether any such vitiating factors were present and, if so, whether they were sufficient to render the agreement void or voidable. The Court found that the parties had reached a clear and unequivocal agreement, and that there was no evidence to support a claim of misrepresentation or a fundamental mutual mistake that would invalidate the settlement.

Consequently, the Court ordered that the settlement agreement was valid and enforceable, and that the parties were bound by its terms.

Orders