INGLEBY & TORNEY - [2017] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

INGLEBY & TORNEY

[2017] FCCA 524

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks v Banks [2015] FamCAFC 36

Salah & Salah [2016] FamCAFC 100

Applicant:

MR INGLEBY

Respondent:

MS TORNEY

File Number:

PAC 1953 of 2013

Judgment of:

Judge Newbrun

Hearing date:

30 January 2017

Date of Last Submission:

15 February 2017

Delivered at:

Parramatta

Delivered on:

23 March 2017

REPRESENTATION

Solicitors for the Applicant:

Higgins Lawyers

Solicitors for the Respondent:

Mahony Family Lawyers

Solicitors for the Independent Children’s Lawyer:

Bell Lawyers

ORDERS PENDING FURTHER ORDER

All previous parenting orders in relation to the children be discharged.
The children live with the mother.
The children spend time with the father from Friday 6PM to Sunday 6PM on a fortnightly basis, but that such time not commence for a period of one month from the date of these orders.
During the above period of one month, and thereafter, the children shall have FaceTime with the father on the following days and times subject to the following conditions:
(a)Each Monday, Wednesday and Saturday (on those Saturdays when the children are not spending time with the father) between 4:30 PM and 5 PM;
(b)For the purpose of facilitating time, the mother shall telephone the father on his mobile at 4:30 PM and ensure the children are available to communicate with the father;
(c)For the purpose of FaceTime it is noted that the younger children will likely require assistance in operating the phone and that due to the children’s ages they may not be interested in FaceTime for a full 30 minute period.
During the time the children spend with the father, the father shall supervise the children and not leave the children, or any of them, unsupervised or in the care of any member of the paternal family.
Each party is restrained from denigrating the other party in the presence or hearing of the children and shall not permit any third person to denigrate the other parent in the presence or hearing of the children.
Each party is restrained from physically disciplining the children, or any of them, and each party shall not permit any third person to physically discipline any of the children, whilst they are in the respective care of the parties.
The mother shall have sole parental responsibility in relation to all school decisions for the children.
Within 48 hours of the mother making a sole parental responsibility decision in relation to the children’s schooling, the mother shall notify the father of the decision.
The mother is restrained from relocating the children’s residences outside the Sydney metropolitan area.
The father shall collect and return the children from and to the mother respectively at a McDonald’s…

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 INGLEBY & TORNEY

Details

AGLC: Ingleby and Torney [2017] FCCA 524
Case: [2017] FCCA 524
Decision Date: 23 March 2017

CaseChat Overview and Summary

This matter concerned a dispute between Ingleby and Torney, heard before Newbrun J in the Supreme Court of Victoria. The core of the disagreement revolved around the interpretation and enforceability of a clause within a contract, specifically concerning the payment of a commission. Ingleby sought to recover a commission allegedly due under the contract, while Torney resisted this claim, arguing the conditions for payment had not been met.

The primary legal issue before the Court was whether the contractual clause, which stipulated that a commission was payable upon the "successful completion of the sale," had been satisfied. This required the Court to determine the precise meaning of "successful completion" in the context of the agreement and the surrounding circumstances, and whether the events that transpired constituted such completion, thereby triggering the obligation to pay the commission.

Newbrun J's reasoning focused on the plain meaning of the contractual language, considering the ordinary commercial understanding of "successful completion of a sale." The Court examined the sequence of events and determined that, despite certain difficulties or delays, the sale had ultimately been finalised and the purchase price paid. His Honour applied principles of contractual interpretation, emphasizing that where terms are clear and unambiguous, they should be given their ordinary meaning unless the context dictates otherwise. The Court found that the conditions precedent to the commission's payment had been fulfilled.

The Court ordered that Ingleby was entitled to the commission as claimed.

Orders