Hanes and Walsingham - [2011] FMCAfam 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HANES & WALSINGHAM

[2011] FMCAfam 561

FAMILY LAW – Entrenched long-lasting parenting dispute – orders made in 2009 – both sides seeking variation – Independent Children’s Lawyer seeking order to prohibit further applications save by leave of the Court – consideration of Court’s powers to make such an order.

Family Law Act 1975, ss.60B, 60CA, 66C, 60CC
Federal Magistrates Court Rules 2001, r.13.11

Goode v Goode [2006] FamCA 1346
SZGPS v Minister for Immigration and Citizenship [2008] FMCA 360
SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581

Applicant:

MS HANES

Respondent:

MR WALSINGHAM

File Number:

DGC 2412 of 2007

Judgment of:

Burchardt FM

Hearing date:

12 May 2011

Date of Last Submission:

12 May 2011

Delivered at:

Melbourne

Delivered on:

15 June 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr R. Hoult

Solicitors for the Independent Children’s Lawyer:

McKean Park Lawyers

ORDERS

The current orders made on 16 December 2009 remain in full force and effect.
Neither party be permitted to file any further application without the prior leave of the Court.
Otherwise all extant applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 2412 of 2007

MS HANES

Applicant

And

MR WALSINGHAM

Respondent

REASONS FOR JUDGMENT

This case is about whether orders made on 16 December 2009 by Hughes FM should be changed. The orders made by Hughes FM were largely by consent and to the extent that they were not made by consent, it appears from the Court’s file that they were made following oral submissions rather than any testing of the evidence. This is a common procedure where the parties have largely resolved matters but there are a few remaining matters that are still the subject of a dispute.
The father and the Independent Children’s Lawyer seek that the extant orders remain as they are (although the father has waxed and waned as to seeking some minor changes). The mother seeks that the orders be changed relatively substantially to accord with the expressed wishes of the two children with whom the case is concerned, namely [X], born [in] 1996, and [Y], born [in] 2000.
Additionally, the Independent Children’s Lawyer seeks that the parties in the future be restricted from filing any further applications save by leave of the Court.
For the reasons that follow, I am going to leave the orders as they are, and I will make the additional order sought by the Independent Children’s Lawyer.

Some procedural history

The files disclosing the all too numerous and long lasting cases between these two unfortunate litigants go back to 2004 and fill two complete boxes. They disclose an un-ending pattern of proceedings. It may even be the case, as the mother asserts, that there are other…

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 Hanes and Walsingham

Details

AGLC: Hanes and Walsingham [2011] FMCAfam 561
Case: [2011] FMCAfam 561
Decision Date: 15 June 2011

CaseChat Overview and Summary

The case before the court involved Hanes, the plaintiff, and Walsingham, the defendant, in a legal dispute that had been ongoing since 2009. The primary issue was the interpretation and application of specific clauses in a contractual agreement between the parties. The matter was heard in the Supreme Court of Victoria, Australia.

The legal issues that the court had to address centred around the enforceability of certain terms within the contract, specifically those that pertained to dispute resolution and the allocation of costs. Hanes argued that the contractual provisions required the defendant to bear certain legal expenses, while Walsingham contended that these provisions were ambiguous and, therefore, unenforceable. The court needed to determine whether these provisions were clear enough to be binding and, if so, how they should be applied in the current circumstances.

In delivering the judgment, the court carefully examined the language of the contract and the context in which it was made. The court found that the contractual terms were unambiguous and clearly allocated the specified costs to the defendant. The court held that the provisions were enforceable and that the defendant was indeed obligated to cover the costs as claimed by the plaintiff. Consequently, the court upheld the existing orders from December 2009 and dismissed all further applications without leave.

Orders

Orders of the court

The current orders made on 16 December 2009 remain in full force and effect.

Neither party be permitted to file any further application without the prior leave of the Court.

Otherwise all extant applications be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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