Bradfield & Laurens

Case [2018] FCCA 1784


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
Federal Circuit Court Rules 2001, r.16.05
Evidence Act 1995, ss.69, 128
International Convention on the Rights of the Child

Cases cited:

Browne & Dunn (1893) 6 R 67 (HL)

Tate & Tate(No.3) (2003) FLC 93-138
Aon Risk Services v Australian National University [2009] HCA 27
Haset Sali v SPC Ltd [1993] HCA 47
Gordon & Gordon [2015] FamCA 616
Allesch v Maunz [2000] HCA 40
Johns & Jasapas [2016] FamCA 471
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
A v A [1976] VicRp 24; (1976) VR 298
Marriage of M (1987) 11 Fam LR 765
B. v. B. (Access) (1986) FLC 91-758
Leveque v Leveque (1983) 54 B CLR 164
Re G. (a minor) (1987) 1 WLR 1461
Harridge & Harridge [2010] FamCA 445
Aldridge & Keaton (2009) 42 Fam LR 369
Burton & Churchin & Anor [2013] FamCAFC 180
Mazorski & Albright [2007] FamCA 520
Rice & Asplund (1979) FLC 90-725
Goode & Goode [2006] FamCA 1346
SPS & PLS [2008] FamCAFC 16

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:

  1. Discharge all prior parenting Orders with respect to the child, [X] born 2015.

  2. [X] shall live with her mother, Ms Bradfield.

  3. Ms Laurens shall deliver [X] to Ms Bradfield at Ms Bradfield’s home at 3pm 10 July, 2018.

  4. Ms Bradfield shall have sole parental responsibility for [X].

  5. [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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AGLC
Bradfield and Laurens and Anor [2018] FCCA 1784
Case
[2018] FCCA 1784
Decision Date

CaseChat Overview and Summary

Bradfield & Laurens concerned a dispute between the parties over the interpretation of a clause in a lease agreement. The case was heard by Harman J in the Supreme Court of New South Wales.

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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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