Cross and Cross - [2007] FamCA 387

FAMILY COURT OF AUSTRALIA

CROSS & CROSS

[2007] FamCA 387

FAMILY LAW - INJUNCTIONS - Personal protection – Question whether there is sufficient evidence to grant an order – Definition of personal protection considered – Question of whether surveillance by a private investigator amounts to harassment

Family Law Act 1975 (Cth)
Crimes (Family Violence) Act 1987 (Vic)

Boughey v R (1986) 161 CLR 10
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Films Rover International Limited v Cannon Film Sales Limited [1987] 1 WLR 670
Hooper v Rogers [1975] Ch 43
In the marriage of English (1986) FLC 91-729; 10 Fam LR 808
In the marriage ofKemsley (1984) 1 FLC 91-567; 10 Fam LR 125
Kirby v Phelan [2003] VSC 43 unreported 6 February 2003 Bongiorno J.
M and DB (2006) FLC 93-293
Sieling and Sieling (1979) FLC 90-627; 4 Fam LR 713
Waugh and Waugh (2000) FLC 93-052; 27 Fam LR 63

APPLICANT:

MRS CROSS

RESPONDENT:

MR CROSS

FILE NUMBER:

MLF

1136

2006

DATE DELIVERED:

3 May 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

CRONIN J

HEARING DATE:

20 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney of Counsel

SOLICITOR FOR THE APPLICANT:

Glezer Lanteri & Associates, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld, one of Her Majesty’s Counsel

SOLICITOR FOR THE RESPONDENT:

Kennedy Wisewoulds, Solicitors

Orders

The Application in a Case filed on 5 April 2007 be dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1136 of 2006

MRS CROSS

Applicant

And

MR CROSS

Respondent

REASONS FOR JUDGMENT

This matter came before me on 20 April 2007 and I reserved judgment as I wanted to consider what orders to make but also because of the very limited time that I had to consider the issues. I am judge managing the matter for a trial later in the year.
The application on a Form 2 was made by the wife seeking an injunction of a personal nature against the husband. The husband denies that there is any evidence which would form the basis for that order.
I have had the benefit now of reading the respective affidavits of the parties and the material to which I was referred. Mr Sweeney of Counsel appeared on behalf of the wife seeking the order and Mr Bartfeld, one of Her Majesty’s Counsel, appeared on behalf of the husband to oppose the order.
The application of the wife seeks the following orders:
“1. That the husband, his servants and agents be restrained from:
(a)following the wife or [Mr G];
(b)hiring or appointing a private investigator or any other person to follow the wife or her boyfriend [Mr G] and/or to make either herself or [Mr G] the subject of surveillance.
2.That the husband pay the costs associated with this Application in a Case, on an indemnity basis.”
The husband simply seeks an order for the dismissal of the wife’s application.
In her affidavit in support of her application filed 5 April 2007, the wife, after setting out…

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 Cross and Cross

Details

AGLC: Cross and Cross [2007] FamCA 387
Case: [2007] FamCA 387
Decision Date: 3 May 2007

CaseChat Overview and Summary

In the matter of *Cross and Cross*, Cronin J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a will. The applicant, the executor of the will, sought directions from the court regarding the distribution of the deceased's estate, specifically concerning a bequest to the respondent, who was the deceased's daughter. The core of the dispute lay in whether the respondent was entitled to receive the bequest outright or if it was subject to certain conditions or limitations.

The primary legal issue before the court was the construction of the relevant clause in the deceased's will. This involved determining the testator's intention as expressed in the testamentary instrument, particularly in relation to the nature of the interest granted to the respondent. The court had to consider whether the language used created a vested interest, a contingent interest, or a life interest, and whether any conditions precedent or subsequent were attached to the bequest.

Cronin J applied established principles of will construction, emphasising that the court's paramount duty is to ascertain and give effect to the testator's intention as revealed by the words of the will itself, read as a whole. The judge analysed the specific wording of the bequest, considering the surrounding provisions of the will to understand the context and overall scheme of distribution. The court found that the language used indicated a clear intention to grant an absolute interest to the respondent, with no conditions or limitations intended to restrict her entitlement.

Consequently, Cronin J ordered that the respondent was entitled to receive the bequest absolutely, free from any encumbrances or conditions beyond those ordinarily applicable to an executor distributing an estate.

Orders