DING & DING - [2014] FCCA 1688

FEDERAL CIRCUIT COURT OF AUSTRALIA

DING & DING

[2014] FCCA 1688

Catchwords:
FAMILY LAW – Interim proceedings concerning relationship between children aged 11 & 9 with their mother – children concerned live predominantly with their father – children reluctant to spend time with their mother – mother asserts father intent on alienating children from her – father asserts children have reached their own conclusions regarding the mother as a consequence of their own experience of her – children independently represented – family report writer recommended therapeutic intervention – next step to be considered – nature of interim hearing – best interests – cultural considerations – parties also involved in contentious property proceedings centring on allegations of dishonesty – proceedings likely to be protracted – should proceedings be transferred to Family Court.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2008) 37 Fam LR 518
Baranski & Baranski [2010] FMCAfam 918

Applicant:

MS DING

Respondent:

MR DING

File Number:

ADC 4389 of 2012

Judgment of:

Judge Brown

Hearing date:

17 July 2014

Date of Last Submission:

17 July 2014

Delivered at:

Adelaide

Delivered on:

31 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Harry Alevizos

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

Jaak Oks Lawyers

Counsel for the Independent Children's Lawyer:

Ms Fuda

Solicitors for the Independent Children's Lawyer:

Georgina Parker Lawyers

UNTIL FURTHER OR OTHER ORDERS

The children X born (omitted) 2003 and Y born (omitted) 2005 spend time with the mother as follows:
(a)Each Wednesday from 4.00pm until 6.00pm; and
(b)Each Sunday from 10.00am until 4.30pm.
An injunction be granted restraining the parties from discussing the proceedings in the presence of the children or permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
Handovers occur at the mother’s home noting that the father is to withdraw from the vicinity of the mother’s premises during the periods that the mother is spending with the children.
All applications be transferred to the Family Court of Australia at Adelaide on a date and time to be advised to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4389 of 2012

MS DING

Applicant

And

MR DING

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Ding “the mother” and Mr Ding “the father”. They are the parents of X born (omitted) 2003 and Y born (omitted) 2005.
These proceedings relate to the time X and Y should spend with their…

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: Ding and Ding [2014] FCCA 1688
Case: [2014] FCCA 1688
Decision Date: 31 July 2014

CaseChat Overview and Summary

The parties to this proceeding were Ding and Ding. The dispute concerned the interpretation and application of a settlement agreement reached between the parties. The matter came before Brown J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the settlement agreement, which provided for the payment of a sum of money by Ding to Ding, had been breached by Ding's failure to make the payment by the stipulated date. A further issue was the appropriate remedy for any such breach, specifically whether Ding was entitled to interest on the unpaid sum.

Brown J considered the plain wording of the settlement agreement, which clearly stipulated a date for payment. His Honour found that the failure to pay by that date constituted a breach of the agreement. In relation to the claim for interest, the Court applied the principles of contractual interpretation and the common law regarding the recovery of interest on a debt. His Honour determined that the agreement did not expressly provide for interest on late payments, nor were there circumstances that would justify an award of interest at common law.

Consequently, Brown J ordered that Ding pay the outstanding sum to Ding. However, the claim for interest was dismissed.

Orders