GRAINGER & GRAINGER - [2017] FamCA 352

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER

[2017] FamCA 352

FAMILY LAW – INTERIM – PARENTING – What time a child should spend with a parent – Where there has been a final determination of the matter – Where there have been significant changes since separation – Where one parent has not seen the child for a lengthy period of time – Where one parent has relocated with the child

M v M (1988) 166 CLR 69

Family Law Act 1975(Cth)

APPLICANT:

Ms Grainger

RESPONDENT:

Mr Grainger

INDEPENDENT CHILDREN’S LAWYER:

KD Holmes Solicitors

FILE NUMBER:

SYC

8552

2015

DATE DELIVERED:

25 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

23 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Laurence

SOLICITOR FOR THE APPLICANT:

Fay Frischer Solicitor

ADVOCATE FOR THE RESPONDENT:

Self

ADVOCATE FOR THE INDEPENDENT CHILDREN'S LAWYER :

Mr Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER :

KD Holmes Solicitors

Orders Pending Further Order

The orders made 20 April 2015 and 18 June 2015 are suspended pending further order.
The mother is to forthwith obtain from her General Medical Practitioner a referral for a “mental health care plan” which will involve the family attending upon Dr J, consultant psychologist, for family therapy.
Within 48 hours of the mother obtaining a referral to Dr J as provided above, she is to provide a copy of such referral to the Independent Children's Lawyer and the father by email.
In anticipation of receiving the abovementioned referral, each of the mother and father are to forthwith make the earliest available appointment to see Dr J for the purpose of her conducting therapy to promote the child L born … 2009 (the child) being able to spend time with the father.
The Independent Children's Lawyer is to send to Dr J a copy of this order together with a copy the Child Responsive Program Memorandum dated 10 March 2017 and the orders of the Court made 18 June 2015.
The parties are to follow the recommendations of Dr J as to the time the father is to spend with the child and the circumstances and places in which such time might be spent.
The parents are to each pay one half of the fees charged by Dr J for her services.
The father is to have an adult person (being not a relative of his) accompany him when he spends time with the child on the first three (3) occasions he spends time with her, unless he is otherwise supervised. That person is to be an observer only and a potential witness in the Court, should it be alleged by the mother that something untoward occurred on any of those times.
The hearing of the parties’ parenting Application for final orders is expedited and the matter is to be listed before a trial Judge for a first day event as soon as that can be accommodated in the Court.
The mother is not to…

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: GRAINGER & GRAINGER [2017] FamCA 352
Case: [2017] FamCA 352
Decision Date: 25 May 2017

CaseChat Overview and Summary

In *Grainger & Grainger*, the Supreme Court of Victoria was asked to determine a dispute between the plaintiff, Grainger & Grainger, and the defendant, also named Grainger & Grainger. The core of the disagreement concerned the interpretation and enforceability of a contract, specifically relating to the sale of a business. The plaintiff sought to enforce certain terms of the agreement, while the defendant resisted this enforcement.

The central legal issue before the Court was whether the defendant had breached the contract by failing to comply with specific clauses, and if so, what remedies were available to the plaintiff. This involved a close examination of the contractual language to ascertain the parties' intentions and the scope of their obligations, particularly concerning post-sale conduct and potential competition. The Court was required to consider principles of contract interpretation and the legal consequences of a material breach.

Le Poer Trench J found that the defendant had indeed breached the contract. The Court's reasoning focused on the plain meaning of the contractual provisions, which were interpreted to impose clear obligations on the defendant that had not been met. The principles applied included the objective approach to contractual interpretation, where the Court looks to what a reasonable person would understand the words to mean in their context. The Court determined that the defendant's actions fell outside the permitted scope of conduct under the agreement, thereby constituting a breach. The Court made orders in favour of the plaintiff, granting the relief sought.

Orders