D & P

Case [2006] FamCA 170 22 March 2006

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[2006] FamCA 170

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal No. NA 40 of 2005
File No. BRF5133 of 2003

IN THE MATTER OF:

Appellant Mother

- and -

Respondent Father

REASONS FOR JUDGMENT

BEFORE:                   Finn, Holden and Boland JJ
HEARD:  3^rd day of November 2005
JUDGMENT:            22^nd day of March 2006

Name of Appeal	D & P
Appeal Number	NA 40 of 2005
File No.	BRF5133 of 2003
Coram	FINN, HOLDEN AND BOLAND JJ
Date of Appeal Hearing	3 November 2005
Date of Publication of Judgment	22 March 2005

CATCHWORDS

FAMILY LAW – APPEALS – from decision of Family Court judge against a discretionary order

CHILDREN – Residence - weight to be given to a welfare report.

LEGISLATION CITED/CONSIDERED:

Family Law Act 1975 (Cth) – s 68F(2)

CASE LAW CITED:
Australian Coal and Shale Employees' Federation & Anor v the Commonwealth & Ors (1953) 94 CLR 621
BBT and JMT (1980) FLC 90-809
Brear v Corcoles-Alfaro (1997) FLC 92-768
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Paskandy and Paskandy (1999) FLC 92-878
Smith and Smith (1994) FLC 92-488 at 81,084
Taylor and Taylor (1996) FLC 92-661

Appeal dismissed.
Appellant pay the respondent’s costs fixed in the sum of $2000.00.

Introduction

This is the appellant mother’s appeal against an order made by Bell J on 12 May 2005 ordering that the child, J (‘the child’), reside with the respondent father.

Background

The factual background to this matter, as recorded in his Honour’s ex tempore judgment, can be summarised as follows.
The parties commenced cohabitation in or about 1993. The child was born 11 July 1996 and is now 9 years of age.
The appellant mother had two children prior to the parties’ relationship, A and S, who at the time of the trial were 17 and 24 years old respectively. A resided with the parties whereas S did so for only a period. The parties separated in or about July 2002 and after that, the appellant mother moved to (the suburb) B.
After separation, the child resided with the appellant mother, but around Christmas time 2002 the child commenced living with the respondent father and his mother, in M.
The respondent father instituted proceedings on 24 November 2003 and on 5 March 2004 interim consent orders were made which were agreed to at a Legal Aid conference held on 2 February 2004. Those orders provided inter alia that the child reside with the father and that the mother have contact on the first and third weekend of each month commencing after school on Friday until 4pm on Sunday.
At the time the consent orders were made, the following notation was recorded:
“2.It is noted that despite the mother’s agreement to these interim orders, she intends to proceed with an application to the court for final orders that…

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: D & P [2006] FamCA 170
Case: [2006] FamCA 170
Decision Date: 22 March 2006

CaseChat Overview and Summary

The Full Federal Court considered an appeal by D & P (the appellants) against a decision of a single judge of the Federal Court. The dispute concerned the interpretation of a settlement agreement entered into between the parties, which had been made an order of the court. The appellants sought to set aside or vary that order, alleging that the settlement agreement was voidable due to misleading and deceptive conduct.

The primary legal issue before the Full Court was whether the appellants had established a sufficient basis to set aside or vary the court order enforcing the settlement agreement. This required the court to determine whether the conduct alleged by the appellants constituted misleading or deceptive conduct under the relevant consumer protection legislation, and if so, whether that conduct rendered the settlement agreement voidable. The court also had to consider the principles governing the setting aside of court orders, particularly where those orders were based on a compromise agreement.

The Full Court held that the appellants had failed to demonstrate that the conduct of the respondent amounted to misleading or deceptive conduct. The court found that the respondent's representations, viewed in their proper context, were not misleading or deceptive. Furthermore, the court affirmed the principle that settlement agreements, once made orders of the court, are generally final and will not be set aside lightly. The appellants' arguments did not meet the high threshold required to disturb a final court order.

Consequently, the Full Court dismissed the appeal and affirmed the decision of the single judge.

Orders