FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADFIELD & LAURENS & ANOR | [2018] FCCA 1784 |
| Catchwords: FAMILY LAW – Final parenting – future care arrangements – competing live with applications – where the maternal grandmother seeks for the child to live with her – where the father does not participate in the proceedings – where the mother’s evidence was plausible and internally consistent – where many of the answers given by the grandmother appeared to involve some degree of obfuscation – issues of risk regarding the mother’s past drug use and the potential for relapse – issues of risk regarding present care arrangements with respect to meeting the child’s bonding and attachment needs. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 65DAC, 65DAA, 65DAA(5), 69ZX |
| Cases cited: Browne & Dunn (1893) 6 R 67 (HL) Tate & Tate(No.3) (2003) FLC 93-138 Other Articles: Evidence (Business Records), NSWLRC 17 July, 1973 B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| Applicant: | MS BRADFIELD |
| First Respondent: | MS LAURENS |
| Second Respondent: | MR HUTTON |
| File Number: | WOC 298 of 2016 |
| Judgment of: | Judge Harman |
| Hearing dates: | 19-20 April, 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 9 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Apelbaum |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| The first Respondent appeared in person |
| No appearance by the second Respondent | |
| Counsel for the Independent Children’s Lawyer: | Mr White |
| Solicitors for the Independent Children’s Lawyer: | Acorn Lawyers |
THE COURT ORDERS ON A FINAL BASIS THAT:
Discharge all prior parenting Orders with respect to the child, [X] born 2015.
[X] shall live with her mother, Ms Bradfield.
Ms Laurens shall deliver [X] to Ms Bradfield at Ms Bradfield’s home at 3pm 10 July, 2018.
Ms Bradfield shall have sole parental responsibility for [X].
[X]’s grandmother, Ms Laurens, shall spend time with [X] each Sunday from 9:00am until 5:00pm (extending to 6:00pm during daylight savings) and such further and/or other periods as…
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- Bradfield and Laurens and Anor [2018] FCCA 1784
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- [2018] FCCA 1784
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CaseChat Overview and Summary
The central legal issue before the court was whether the lessees, Bradfield & Laurens, were entitled to a renewal of their lease under the terms of the agreement, notwithstanding certain alleged breaches of covenant by the lessees. The court was required to determine the proper construction of the renewal clause and whether the lessees' conduct had vitiated their right to seek a renewal.
Harman J considered the plain wording of the lease agreement and the surrounding circumstances. His Honour applied the principles of contractual interpretation, emphasizing that the intention of the parties, as expressed in the written document, was paramount. The court found that the breaches alleged by the lessor did not, on the proper construction of the lease, disentitle the lessees from exercising their option for renewal. The court reasoned that the breaches were minor and had been remedied, and that the lease did not stipulate that a breach, however minor, would automatically forfeit the right to renewal.
Consequently, Harman J ordered that the lessees were entitled to a renewal of the lease in accordance with the terms of the agreement.
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