CHANG & FIN - [2017] FCCA 2813

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANG & FIN

[2017] FCCA 2813

Catchwords:
FAMILY LAW – Interim parenting – Child living with father since July 2015 – issues of risk of harm – child with special needs.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 60CG, 61DB

Cases cited:

Banks & Banks (2015) FLC 93-637

Bondelmonte v Bondelmonte and Another[2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MR CHANG

Respondent:

MS FIN

File Number:

PAC 4753 of 2016

Judgment of:

Judge Obradovic

Hearing date:

10 August 2017

Date of Last Submission:

10 August 2017

Delivered at:

Parramatta

Delivered on:

21 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Wong

Solicitors for the Applicant:

Brighton Lawyers

Counsel for the Respondent:

Ms Steggle

Solicitors for the Respondent:

Southern Hemisphere Lawyers

Appearing for the Independent Children's Lawyer:

Ms Abercrombie

Solicitors for the Independent Children's Lawyer:

Lamrocks Solicitors

PENDING FURTHER ORDER:

The parties shall have equal shared parental responsibility for the child X born on (omitted) 2008.
The child shall live with the father.
During the school term, the child shall spend time with the mother, commencing on 23 November 2017 and each alternate week thereafter, from after school on Thursday to before school on Monday.
During the school holidays at the conclusion of Term 4 in 2017, the child shall spend time with the mother:
(a)From 9am on 24 December 2017 to 1pm on 25 December 2017;
(b)From 9am until 2pm on 30 December 2017;
(c)From 9am on 3 January 2018 until 6pm on 7 January 2018; and
(d)From 9am on 17 January 2018 until 6pm on 21 January 2018.
Otherwise during all other school holidays, the child shall spend time with the mother for half of all New South Wales gazetted school holiday periods being the first half of each school holiday period.
The child shall spend time with the mother on Chinese New Year being Friday 16 February 2018 from 3pm until 5pm unless the child is already in her care, in which case the mother’s time shall be suspended and the child shall spend time with the father from 3pm until 5pm on that day.
In addition to the time provided for in paragraphs (2) to (6) above, the child shall spend time with the mother at any other times as agreed to between the parties in writing.
Neither party shall denigrate the other parent in the presence or hearing of the child and shall use their best endeavours not to allow the child to overhear the denigration of the other parent by any third party.
For the purpose of changeover, the mother shall collect the child from school at the commencement of her time and deliver the child back to school at the conclusion of…

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 CHANG & FIN

Details

AGLC: Chang and Fin [2017] FCCA 2813
Case: [2017] FCCA 2813
Decision Date: 21 November 2017

CaseChat Overview and Summary

In the matter of *CHANG & FIN*, the Supreme Court of New South Wales, presided over by Obradovic J, considered a dispute concerning the interpretation and enforceability of a deed. The parties involved were Mr. Chang and Mr. Fin, and the central issue revolved around obligations purportedly undertaken by Mr. Fin under the deed.

The primary legal question before the Court was whether Mr. Fin was bound by the terms of the deed, specifically concerning his alleged agreement to indemnify Mr. Chang against certain liabilities. This required the Court to examine the circumstances surrounding the execution of the deed and the intention of the parties at that time.

Obradovic J's reasoning focused on the principles of contract and deed construction. The Court analysed the language of the deed itself, considering whether it clearly and unambiguously imposed an indemnity obligation on Mr. Fin. The Judge also considered the surrounding evidence to ascertain the parties' mutual understanding and intention. Ultimately, the Court found that the deed did not establish a clear and enforceable indemnity in favour of Mr. Chang, and therefore, Mr. Fin was not liable for the claimed indemnity.

Orders