CHURCHILL & WILEMAN - [2014] FCCA 1047

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHURCHILL & WILEMAN

[2014] FCCA 1047

Catchwords:
FAMILY LAW – Parenting – Whether interim orders should be made for a child aged two years and three months to spend time with the father – allegations by mother of serious family violence – child has spent only one hour with the father since he was eight months old – mother opposes time occurring – consideration of risk – whether preferable for child to spend time with the father in a supervised setting prior to family report interviews taking place.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Goode & Goode (2006) FLC93-286

Applicant:

MR CHURCHILL

Respondent:

MS WILEMAN

File Number:

NCC 2771 of 2013

Judgment of:

Judge Terry

Hearing date:

9 April 2014

Date of Last Submission:

9 April 2014

Delivered at:

Tamworth

Delivered on:

10 April 2014

REPRESENTATION

Counsel for the Applicant:

Ms Davies

Solicitors for the Applicant:

Rice More Gibson

Solicitor Advocate for the Respondent:

Ms Rands

Solicitors for the Respondent:

Bridge Street Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Boyd

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The mother shall have sole parental responsibility for the child X born (omitted) 2011.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.
The Independent Children’s Lawyer will explore with the parties between now and the next adjourned date the possibility of obtaining an experts report.
The mother is to file and serve a brief Affidavit providing information about the child within 14 days of the date of these orders.
The Independent Children’s Lawyer has leave to issue more than five subpoenas.
This matter is adjourned to 9.30am on 15 May 2014 for further consideration.
The parties, the parties solicitor’s and the Independent Children’s Lawyer have liberty to appear by Genesys telephone link on 15 May 2014.

IT IS NOTED that the parties can take part in the Genesys telephone link by:

a.Dialling the free call number (omitted).
b.When prompted dial in the meeting room number (omitted) (entering the * key before and after the meeting room number).
c.Waiting on the line until the court dials in as “the moderator”.
d.Please ensure you have dialled in several minutes prior to the listing time.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2771 of 2013

MR CHURCHILL

Applicant

And

MS WILEMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me an interim application by the father in which he seeks orders that will allow him to commence spending time with his…

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 CHURCHILL & WILEMAN

Details

AGLC: Churchill and Wileman [2014] FCCA 1047
Case: [2014] FCCA 1047
Decision Date: 10 April 2014

CaseChat Overview and Summary

In the Supreme Court of Queensland, Justice Terry heard a dispute between Churchill and Wileman concerning the interpretation and enforceability of a contract. The core of the disagreement revolved around whether certain clauses within the agreement were sufficiently clear and certain to be legally binding, and if not, what consequences flowed from that uncertainty.

The primary legal issues before the Court were: (1) whether the contract contained terms that were too vague or uncertain to be enforced, and (2) if such uncertainty existed, whether the entire contract was rendered void or if specific, uncertain provisions could be severed. The Court was tasked with determining the legal effect of the ambiguous terms on the contractual obligations of the parties.

Justice Terry reasoned that for a contract to be enforceable, its essential terms must be sufficiently certain. Applying this principle, the Court examined the specific clauses in question and found that they lacked the necessary clarity to define the parties' respective rights and obligations. Consequently, the Court determined that these particular provisions were void for uncertainty. However, the Court further held that the voided clauses were not essential to the overall agreement and could be severed without destroying the remainder of the contract. The remaining, certain terms were therefore upheld and enforceable.

Orders