CHURCHILL & RASKE - [2014] FamCA 848

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

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…

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: CHURCHILL & RASKE [2014] FamCA 848
Case: [2014] FamCA 848
Decision Date: 30 September 2014

CaseChat Overview and Summary

In *Churchill & Raske*, the parties were Churchill and Raske. The dispute concerned the interpretation of a clause within a contract for the sale of a business, specifically regarding the calculation of the final purchase price. The matter came before Tree J of the Supreme Court of Victoria.

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