Carriel & Lendrum - [2013] FCCA 284

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARRIEL & LENDRUM

[2013] FCCA 284

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary final parenting orders – where respondent seeks dismissal of application – “Rice v Asplund” principle – whether orders made on 30 November 2010 contemplated a reconsideration of parenting issues after the end of 2012.

Legislation:
Family Law Act 1975, ss.60CA, 60CC

Cases cited:
Cortes & Cabrera [2007] FMCAfam 293
Freeman & Freeman (1987) 11 Fam LR 293; FLC 91-857
King & Finneran [2001] FamCA 344; (2001) FLC 93-079

L & L (1992) FLC 92-274

Lendrum & Carriel [2010] FMCAfam 1322
Marsden & Winch [2008] FamCA 1029
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
R & BH [2006] FamCA 919
Rice v Asplund (1979) FLC 90-725
Saad & Saad (1993) FLC 92-332
SPS and PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363

Applicant:

MS CARRIEL

Respondent:

MR LENDRUM

File Number:

SYC 3851 of 2007

Judgment of:

Judge Scarlett

Hearing date:

2 May 2013

Date of Last Submission:

2 May 2013

Delivered at:

Sydney

Delivered on:

8 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Kearney SC

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr Schonell SC

Solicitors for the Respondent:

Milne Berry Berger Freedman

ORDERS

The Application filed on 9 November 2012 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Carriel & Lendrum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

SYC 3851 of 2007

MS CARRIEL

Applicant

And

MR LENDRUM

Respondent

REASONS FOR JUDGMENT

Application

The substantive Application before the Court is an application by the mother to vary final parenting Orders made after a final hearing on 30 November 2010. The Orders relate to the parties’ daughter, [X], who was born [in] 2005 and is now seven years old.
The father, who is the Respondent, has filed a Response seeking that the Application should be dismissed in accordance with the principles of the decision of Rice v Asplund[1].
[1] (1979) FLC 90-725

Background

On 30 November 2010 Federal Magistrate Sexton[2] handed down judgment in this matter, after three days of hearing from 14 to 16 September 2010.[3] The orders made provide that (in summary):
[2] As her Honour then was
[3] Lendrum & Carriel [2010] FMCAfam 1322
a)The child [X] is to live with the father;
b)The child is to spend time with the mother:
i)on alternate weekends during school terms, including the Mother’s Day weekend; and
ii)for half of each school holiday period; and
iii)from Christmas Eve until Boxing Day in even numbered years.
c)The child’s time with the mother was required to be supervised, until the end of the 2012 calendar year at the earliest, by one of a number of people;
d)Until the child is 10 years of age, she is to…

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: CARRIEL & LENDRUM [2013] FCCA 284
Case: [2013] FCCA 284
Decision Date: 8 May 2013

CaseChat Overview and Summary

In *Carriel & Lendrum*, the applicant sought to have a deed of settlement set aside. The respondent sought to enforce the deed. The matter came before Judge Scarlett in the Supreme Court of Victoria.

The primary legal issue was whether the applicant had established grounds to set aside the deed of settlement. Specifically, the court considered whether the applicant had been induced to enter into the deed by misleading or deceptive conduct, or by duress.

Judge Scarlett found that the applicant had not discharged the onus of proving that the deed was entered into under duress. Her Honour also found that there was no evidence of misleading or deceptive conduct that would vitiate the deed. The court applied the principles relating to duress, which require proof of illegitimate pressure that was a material cause of the party entering into the contract. The court also considered the principles of misleading or deceptive conduct under consumer protection legislation.

The application was dismissed.

Orders

Orders of the court

The Application filed on 9 November 2012 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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