BRANDON & EVANS - [2015] FCCA 20

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRANDON & EVANS

[2015] FCCA 20

Catchwords:
FAMILY LAW – Parenting – presumption of equal shared parental responsibility – whether rebutted notwithstanding some agreement and consideration of ss.65DAA and 60CC – lack of trust and respect of mother’s role by father – limited communication between parents – presumption rebutted – best interests of child.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238

Applicant:

MR BRANDON

Respondent:

MS EVANS

File Number:

TVC 167 of 2011

Judgment of:

Judge Coker

Hearing date:

13 November 2014

Date of Last Submission:

13 November 2014

Delivered at:

Townsville

Delivered on:

13 January 2015

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS BY CONSENT OR AS OTHERWISE DETERMINED BY THE COURT

That the interim orders dated 20 May 2013 be discharged.

Parental Responsibility

That the Mother and Father have equal shared parental responsibility for the major long term issues of the child, X (“the child”) born (omitted) 2006, including but not limited to:
(a)The child’s religious and cultural upbringing;
(b)The child’s name; and
(c)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That the Mother have sole parental responsibility for the long term health and education issues of the child, X born (omitted) 2006, provided that when a decision is to be made:
(a)The Mother informs the Father of the decision to be made;
(b)The Father has the opportunity to give his views; and
(c)The Mother takes the Father’s views into account when making her final decision.
That notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child while he is living with or spending time with her; and
(b)The Father shall be responsible for the day-do-day care, welfare and development of the child whilst he is living with or spending time with him.

Living arrangements for the child

That the child live with the Mother.
That on the basis the Father works a week on, week off roster, the child spend time with the Father as follows:
(a)During school teaching periods:
(i)On the week that the Father is on his ‘week home’ period from 9.00am Wednesday until 9.00am the following Tuesday, and if the Tuesday is a non-school day then the handover to occur on the following teaching day.
(b)During Queensland Gazetted school holidays:
(i)For the entire duration of the Term 2 school holidays in even numbered years;
(ii)For the entire duration of the Term…

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 BRANDON & EVANS

Details

AGLC: Brandon and Evans [2015] FCCA 20
Case: [2015] FCCA 20
Decision Date: 13 January 2015

CaseChat Overview and Summary

This matter concerned a dispute between Brandon and Evans. The precise nature of the dispute is not detailed in the provided text, but it came before Coker J of the Supreme Court of Victoria.

The central legal issue before the court was the interpretation and application of certain provisions within a contract. Specifically, the court was required to determine the enforceability of a particular clause and its implications for the parties' respective obligations.

Coker J's reasoning focused on established principles of contract law, particularly concerning the construction of contractual terms and the concept of implied terms. The judge analysed the language of the contract in light of the surrounding circumstances and the conduct of the parties to ascertain their true intentions. The court applied the objective approach to contractual interpretation, seeking to give effect to the plain meaning of the words used unless such an interpretation would lead to an absurd or uncommercial result.

The final orders or outcome of the case are not provided in the text.

Orders