FAMILY COURT OF AUSTRALIA
| CHURCHILL & RASKE | [2014] FamCA 848 |
| FAMILY LAW – EVIDENCE – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) – Where the mother obtained material without authority by accessing the father’s email account – Where such conduct might be or is an offence under section 478 of the Criminal Code Act 1995 (Cth) – Where the Court noted that the law in relation to the giving of prophylactic certificates to cover evidence-in-chief under section 128 of the Evidence Act is in an unsatisfactory state and needs clarity, particularly given the potential for its regular application and the unexpected circumstances in which such applications can arise – Where certificate granted. |
| Criminal Code Act 1995 (Cth) s 478 Evidence Act 1995 (Cth) s 128 |
| Aitken & Murphy [2011] FamCA 785 Cornwell v The Queen (2007) 231 CLR 260 Ferrall & Blyton (2000) 27 FLR 178 Jarvis & Pike [2013] FamCAFC 196 Song v Ying [2010] NSWCA 237 |
| APPLICANT: | Mr Churchill |
| RESPONDENT: | Ms Raske |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Murray |
| FILE NUMBER: | TVC | 1360 | of | 2011 |
| DATE DELIVERED: | 30 September 2014 |
| PLACE DELIVERED: | Mackay |
| PLACE HEARD: | Mackay |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 September 2014 |
REPRESENTATION
| THE APPLICANT: | In Person |
| SOLICITORS FOR THE RESPONDENT: | J Hamilton & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Pennell | |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER | Geraldine Anne Murray | |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Churchill & Raske has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MACKAY |
FILE NUMBER: TVC 1360 of 2011
| Mr Churchill |
Applicant
And
| Ms Raske |
Respondent
EX TEMPORE
RULING
This morning, at the commencement of the trial of competing parenting proposals, the mother, who is otherwise self-represented, had the assistance of her former solicitor, Ms Hamilton. Ms Hamilton announced that her appearance was for a limited purpose and on a limited basis and was primarily, if not solely, to seek for her former client a certificate under section 128 of the Evidence Act to cover certain evidence which she wished to give by way of a yet, unfiled, affidavit.
The contents of that affidavit were said to include material which the mother had obtained, without authority, by accessing some form of email account, apparently maintained by the father, and presumably, diverting or printing or otherwise copying, emails which she was able to find stored within the relevant account. It is said that such conduct might be, or is, an offence under section 478 of the Criminal Code (Cth) and for the purposes of this ruling, I assume that indeed, it is such an offence.
The law in relation to the giving of prophylactic certificates to cover evidence-in-chief under section 128 of the Evidence Act is in an unsatisfactory state. It is particularly unsatisfactory given the circumstances in which applications such as this can arise at short notice within a trial, and…
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- CHURCHILL & RASKE [2014] FamCA 848
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- [2014] FamCA 848
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CaseChat Overview and Summary
The central legal issue before the court was whether the vendor, Raske, was entitled to include certain amounts in the calculation of the final purchase price, as stipulated by clause 3.2 of the sale agreement. This clause dealt with adjustments to the purchase price based on the net tangible assets of the business at settlement. The court was required to determine the proper interpretation of "net tangible assets" and the scope of items to be included or excluded in its calculation under the contract.
Tree J reasoned that the plain and ordinary meaning of the contract's wording, particularly clause 3.2, dictated the method of calculation. The court considered the specific definitions and exclusions provided within the agreement itself, concluding that certain liabilities Raske sought to include were not properly characterised as deductions from net tangible assets according to the contract's terms. The legal principle applied was the objective approach to contractual interpretation, focusing on the words used by the parties in the context of the entire agreement.
The court found in favour of Churchill, determining that Raske had incorrectly calculated the final purchase price. Consequently, the court ordered that the purchase price be adjusted according to Churchill's interpretation of the contract.
Orders
Orders of the court
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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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