Ellis v Ellis - [2012] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation: Ellis v Ellis [2012] NSWSC 577
Hearing dates: 5 October 2011
Decision date: 04 June 2012
Before: Hoeben J
Decision:
(1) Appeal allowed.
(2) The orders made by her Honour on 18 October 2010 are quashed.
(3) I direct the parties to prepare Short Minutes within fourteen (14) days of the date hereof which reflect the above findings and which have regard to the following:
(i) In accordance with her Honour's findings, the defendant had no obligation to make any payments pursuant to cl 1.1 of the agreement after the children commenced attending their new school. He does have an obligation to make payments under that clause up to and including the date when the children ceased attending "their current private schools". To the extent that the plaintiff received ASG cheques in respect of that period, i.e. until the children ceased attending "their current private schools", the defendant should receive a credit.
(ii) The defendant is to make payments pursuant to cls 1.2 and 1.3 of the agreement up to and including 16 July 2010, except that there is no obligation to make any payments in respect of the child Jessica after she turned 18.
(iii) The question of what happens to the ASG cheques received by the plaintiff, other than the adjustment referred to above, is not to form any part of the Short Minutes.
(4) In default of agreement, each party is to bring to Court Short Minutes setting out the orders which he or she submits should be made.
(5) Each party should be in a position to make brief submissions as to costs in relation to the proceedings before her Honour and in this Court.

Catchwords: APPEAL - appeal from Local Court to Supreme Court - Local Court Act 2007 sections 39 and 41 - construction of agreement between divorced parents for maintenance of children - whether agreement to change of school to be inferred from conduct of one party - no failure on the part of Magistrate to provide adequate reasons - error in failing to decide all issues placed before court - Notice of Contention - whether agreement between divorced parents subject to Child Support (Assessment) Act 1989 (Cth) - whether and in what circumstances agreement brought to an end - no remittal to Local Court - discretionary grounds.
Legislation Cited: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Local Court Act 2007
Supreme Court Act 1970
Cases Cited: Alchin v Daley [2009] NSWCA 418
Baring v Russell Edwards Design Services Pty Ltd [2008] NSWCA 58
Besseler Waechter Glover & Co v South Derwent Coal Co Ltd [1938] 1 KB 408
Bruner v Moore [1904] 1 Ch 305
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category: Principal judgment
Parties: Helen Patricia Ellis - Plaintiff
Paul Walton Ellis - Defendant
Representation: Counsel:
Mrs M Bridger - Plaintiff
Mr AM Gruzman - Defendant
Solicitors:
Jo-Anna FS Moy - Plaintiff
Shipton & Associates…

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 Ellis v Ellis

Details

AGLC: Ellis v Ellis [2012] NSWSC 577
Case: [2012] NSWSC 577
Decision Date: 04 June 2012

CaseChat Overview and Summary

In Ellis v Ellis, the appeal was brought from the Local Court to the Supreme Court concerning an agreement between divorced parents regarding the maintenance of their children. The father, Ellis, sought to appeal the Local Court's decision that the mother, also Ellis, was not required to change the children's school as per the original agreement. The mother argued that an agreement to change schools had been implied through her conduct, while the father maintained that no such agreement existed. The Supreme Court was required to determine the validity of the mother's conduct as implying an agreement and whether the Local Court had failed to provide adequate reasons for its decision.

The court addressed the critical issue of whether the Local Court had erred in its interpretation of the agreement between the divorced parents. It considered whether the mother's conduct could be construed as an agreement to change the children's school. Additionally, the court examined whether the Local Court had provided sufficient reasons for its decision and whether there had been an error in not addressing all the issues presented. The court also considered the applicability of the Child Support (Assessment) Act 1989 (Cth) to the agreement and the circumstances under which the agreement could be brought to an end.

The Supreme Court found that the Local Court had not failed to provide adequate reasons for its decision, but had erred in not deciding all the issues put before it. The court held that the mother's conduct did not imply an agreement to change the children's school. Furthermore, it concluded that there was no necessity to remit the case back to the Local Court, as the error did not warrant a remittal on discretionary grounds. The appeal was dismissed, and the decision of the Local Court was upheld.

Orders