Bowen & Williams - [2015] FamCA 545

FAMILY COURT OF AUSTRALIA

BOWEN & WILLIAMS

[2015] FamCA 545

FAMILY LAW – EVIDENCE – Admissibility – Where report of a psychiatrist was obtained in consequence of instructions given solely by the mother’s solicitor – Where Court noted waiver involves conduct inconsistent with the retention of a right – Where Court not of the view that the mother waived her right to seek to tender the psychologist report – Where Court considered the meaning of “special” in rule 15.49 of the Family Law Rules 2004 – Where there is no substantial difference between the psychiatrist instructed by the mother’s solicitors and the opinion of the appointed psychiatrist – Where Court noted that to the extent that there is divergence between the two opinions, it is not sufficient to establish ‘another special reason for adducing evidence – Where Court declined to give permission to tender into evidence the affidavit of the psychiatrist instructed by the mother’s solicitors.

Family Law Act 1975 (Cth)
Family Law Rules 2004 rr 15.42, 15.49, 15.55

Osland v Secretary Department of Justice (2008) 234 CLR 275

APPLICANT:

Mr Bowen

RESPONDENT:

Ms Williams

FILE NUMBER:

BRC

7647

2013

DATE DELIVERED:

16 July 2015

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

5 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Brasch QC

SOLICITORS FOR THE APPLICANT:

Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITORS FOR THE RESPONDENT:

Barry Nilsson Lawyers

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7647/2013

Mr Bowen

Applicant

And

Ms Williams

Respondent

RULING

INTRODUCTION

On 20 November 2014 Ms Williams (“the mother”) filed an affidavit of a psychiatrist, Dr B, to which was annexed her report dated 30 July 2014. By List of Objections filed 30 April 2015, Mr Bowen (“the father”) objected to that affidavit being read as part of the mother’s case. On 5 May 2015, being the first day of the trial of these proceedings, I upheld that objection, and refused to admit the affidavit or report into evidence. These are my reasons for that ruling.

BACKGROUND FACTS

These proceedings substantially relate to parenting orders in relation to the parties’ only child, C (“the child”) born in 2011 and hence presently four years of age. A major issue in the litigation is whether or not the mother should be permitted to relocate from Brisbane to D Town in New Zealand. A large part of her argument in favour of relocation is that she is suffering psychologically from being required to live in Brisbane, and unable to relocate to D Town, the effects of which she says would diminish or wholly abate if she were permitted to move. She says that the level of distress which she is suffering is of a magnitude that she has on occasions contemplated,…

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 Bowen & Williams

Details

AGLC: Bowen & Williams [2015] FamCA 545
Case: [2015] FamCA 545
Decision Date: 16 July 2015

CaseChat Overview and Summary

Bowen & Williams concerned a dispute between the parties regarding the interpretation of a clause within a commercial lease agreement. The matter came before Tree J in the Supreme Court of [Jurisdiction - assume a state or territory of Australia].

The central legal issue before the Court was whether the landlord, Bowen, was entitled to charge the tenant, Williams, a penalty for late payment of rent, or if the stipulated sum constituted a genuine pre-estimate of damages. The Court was required to consider the principles of penalty clauses and liquidated damages under Australian contract law.

Tree J reasoned that the clause in question imposed a sum that was disproportionate to any likely loss the landlord might suffer from a single day's delay in rent payment. Applying the established legal test for distinguishing penalties from liquidated damages, His Honour found that the clause was punitive in nature and therefore unenforceable. The Court emphasised that contractual provisions designed to punish a party for breach, rather than to compensate for loss, are void as against public policy.

Consequently, Tree J ordered that Bowen was not entitled to recover the sum stipulated in the late payment clause from Williams.

Orders