COBURN & SAKURA - [2011] FamCA 640

FAMILY COURT OF AUSTRALIA

COBURN & SAKURA

[2011] FamCA 640

FAMILY LAW - CHILDREN – Where child resident in Japan – Where due to earthquakes in Tokyo and nuclear incident in Fukushima mother and paternal grandparents move child temporarily to Country 1 to stay with paternal grandparents – Without the mother’s consent child removed from Country 1 and brought to Australia by the father– Parenting proceedings in Japan and Australia – Whether proceedings in Australia should be stayed and parenting issues determined in Japan - Kwon & Lee (2006) FLC 93-287 applied – Where child’s best interests paramount consideration – Father’s adjournment application refused - Weight given to evidence of the Family Consultant that the child feels isolated and lonely in Australia – Where child’s strongest relationship is with the mother – Where evidence of mother’s emotional emails outweighed by known facts – Where child has a close relationship with the mother’s family in Japan – Where child has strong Japanese cultural influence – Not established that living in Tokyo because of proximity to Fukushima child’s health or safety at risk – Where any outstanding parenting issues can be determined in Japan – Ordered that the child return to Japan with the mother.

Family Law Act 1975 (Cth) s 60CA

Kwon & Lee (2006) FLC 93-287

APPLICANT:

Mr Coburn

RESPONDENT:

Ms Sakura

FILE NUMBER:

SYC

988

2007

ORDERS MADE:

11 August 2011

DATE DELIVERED:

17 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

8 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

David H Cohen & Co

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders made 11 August 2011

All prior orders made in these proceedings are discharged.
That the child N (aka … and …) born … November 2000 (“the child”) live with Ms Sakura (“the mother”).
That the mother is permitted to forthwith remove the child permanently from the Commonwealth of Australia.
That Mr Coburn (“the father”) forthwith deliver the child to the mother and give her the child’s original current passports issued by the Japanese and Country 1 Governments.

The court having granted the mother’s application

By consent it is ordered

That the child is to spend time with the father as follows:-
(a)From 24 to 31 of December in each year in Australia or elsewhere if such place is agreed in writing by the parties.
(b)That to facilitate the time in Order 5(a) above the mother is to ensure that the child boards a flight from Japan no later than the morning of 24 December in each year, and the father will ensure that the child boards a flight from Australia to Japan no later than the morning of 31 December in each year.
(c)In Japan for one week in each year as nominated by the father provided that the father gives the mother at least two calendar months notice of his intention to exercise such time.

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 COBURN & SAKURA

Details

AGLC: COBURN & SAKURA [2011] FamCA 640
Case: [2011] FamCA 640
Decision Date: 17 August 2011

CaseChat Overview and Summary

The parties to this proceeding were Coburn and Sakura. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically regarding the date by which certain conditions precedent were to be satisfied. The matter came before Ryan J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the vendor, Sakura, had validly terminated the contract for sale due to the purchaser, Coburn, failing to satisfy a condition precedent by the stipulated date. This required the Court to determine the precise meaning and effect of the contractual clause setting out the timeframe for satisfaction of the condition.

Ryan J reasoned that the plain language of the contract indicated that the condition precedent had to be satisfied on or before a specific date. His Honour applied principles of contractual interpretation, emphasizing the importance of giving effect to the ordinary meaning of words used by the parties in the context of the entire agreement. The Court found that the condition had not been satisfied within the required timeframe, and therefore the vendor was entitled to terminate the contract.

Consequently, Ryan J made orders dismissing Coburn's claim for specific performance and declaring that the contract had been validly terminated by Sakura.

Orders