HARLOW & HATHAWAY - [2018] FCCA 1083

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARLOW & HATHAWAY

[2018] FCCA 1083

Catchwords:
FAMILY LAW – Parenting – live with – interim spend time arrangements – child with anxiety and depression – schooling arrangements – participation in family therapy – harm to the children due to parents high conflict – medical practitioners for the child.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65DAE

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Newlands & Newlands [2007] FamCA 168

R & R: Children’s Wishes (2000) FLC 93-000

Redmond & Redmond [2014] FamCAFC 155

SS & AH [2010] FamCAFC 13

Applicant:

MR HARLOW

Respondent:

MS HATHAWAY

File Number:

SYC 4442 of 2014

Judgment of:

Judge Kemp

Hearing date:

15 March 2018

Date of Last Submission:

15 March 2018

Delivered at:

Sydney

Delivered on:

4 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Shorehills Legal Solicitors

Respondent:

Self-represented

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

By consent, order 2 of the consent orders made on 8 April 2016 be suspended.
By consent, the father shall spend time with the child [X], born …2001 (“[X]”) in accordance with her wishes.
For three (3) months from the date of these orders, the father spend time with the child [Y], born …2004 (“[Y]”)(known collectively with [X] as “the children”), as follows:
(a)from 9:00am until 8:00pm on Saturday and each alternate Saturday thereafter;
(b)each Wednesday night from the conclusion of school until 8:00pm; and
(c)at any other times as agreed between the parties.
Three (3) months after the time period in order 3 above concludes, the father commence spending time with [Y], as follows:
(a)from 9:00am on Saturday until 5:00pm on Sunday and each alternate weekend thereafter;
(b)each Wednesday night from the conclusion of school until 8:00pm; and
(c)at any other times as agreed between the parties.
For the purposes of the father spending time with [Y], in accordance with orders 3 and 4 above, the father shall send a text message to [Y] prior to such time occurring, seeking her suggestions in relation to activities they could do during their time together and incorporate these suggestions into his planned time with [Y].
By consent, the father advise the mother via text message of any planned trips that will prevent him from spending time with either of the children, 14 days prior to any such trip.
The mother and the father sign all documents and do all things reasonably necessary for [Y] to be enrolled with and to maintain her schooling at School 1 High School, in accordance with the school plans prepared/formulated by Mr A and School 1 High School, in consultation with Dr B.
The mother and the father sign all documents and do all things reasonably necessary to authorise the school counsellor at School 1 High School…

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 HARLOW & HATHAWAY

Details

AGLC: Harlow and Hathaway [2018] FCCA 1083
Case: [2018] FCCA 1083
Decision Date: 4 May 2018

CaseChat Overview and Summary

Harlow & Hathaway (the plaintiffs) brought proceedings against the defendant, seeking to enforce a guarantee. The dispute concerned whether the defendant was liable under a guarantee for debts owed by a company to the plaintiffs. The matter came before Kemp J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant's liability under the guarantee had been discharged by the plaintiffs' conduct. Specifically, the court had to determine if the plaintiffs had, through their actions or omissions, released the defendant from their obligations under the guarantee. This involved considering whether the plaintiffs had acted in a way that prejudiced the defendant's position as a guarantor.

Kemp J reasoned that for a guarantor's liability to be discharged by the creditor's conduct, that conduct must amount to a breach of a duty owed to the guarantor. In this instance, the court found that the plaintiffs had not breached any duty owed to the defendant. The actions complained of by the defendant were found not to have prejudiced the defendant in a manner that would legally discharge their guarantee obligations. The principles applied centred on the established legal framework for the discharge of guarantees, requiring a material prejudice arising from a breach of duty by the creditor.

The court ultimately found in favour of the plaintiffs, ordering that the defendant was liable under the guarantee.

Orders