Jagi and Gaba - [2018] FCCA 1039

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAGI & GABA

[2018] FCCA 1039

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking order that mother return child to Sydney from Melbourne – proposed order not made – best interests of child.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Eaby and Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Morgan & Miles [2007] FamCA 1230

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MR JAGI

Respondent:

MS GABA

File Number:

PAC 1407 of 2017

Judgment of:

Judge Newbrun

Hearing date:

22 December 2017

Date of Last Submission:

22 December 2017

Delivered at:

Parramatta

Delivered on:

30 April 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Gitteos-Caesar of Coleman Greig Lawyers

The Respondent appeared in person

ORDERS PENDING FURTHER ORDER

The father’s Application in a Case filed 28 July 2017 is dismissed.
That the interim parenting orders of 9 May 2017 are discharged.
That the child [X] born (omitted) 2011 (“the child”) live with the mother in Melbourne.
That the child spend time with the father as follows:
(a)During school terms, every third, sixth and ninth weekend of the gazetted Victorian school terms, from 9:00am Saturday to 4:00pm Sunday, recommencing each new school term. The child shall spend such weekends with the father in an alternating fashion, each third weekend, between Melbourne and Sydney.
(b)During the short school holiday periods, for one half of each of the short gazetted Victorian school holiday periods as follows:
(i)For the first half of the short school holiday periods, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, commencing in 2018 and continuing each alternate year thereafter; and
(ii)For the second half of the short school holiday periods, commencing at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2019 and continuing each alternate year thereafter.
(c)During the Christmas school holiday periods, for one half of the gazetted Victorian Christmas school holiday period as follows:
(i)For the first half of the Christmas school holiday period, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period, commencing in 2017 and continuing each alternate year thereafter; and
(ii)For the second half of the Christmas school holiday period, commencing at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2018 and continuing each alternate year thereafter.
Changeover, in relation to the child spending time with the father during school term times, shall occur as follows:
(a)When the child is…

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 Jagi and Gaba

Details

AGLC: Jagi and Gaba [2018] FCCA 1039
Case: [2018] FCCA 1039
Decision Date: 30 April 2018

CaseChat Overview and Summary

In *Jagi and Gaba*, the Supreme Court of Victoria was asked to determine a dispute between Jagi and Gaba concerning the interpretation of a clause within a commercial lease agreement. The central issue revolved around whether a specific event constituted a "force majeure" as defined in the lease, thereby excusing Gaba from its rent payment obligations. Jagi contended that the event did not meet the contractual definition, while Gaba argued it did.

The court was required to consider two primary legal issues. Firstly, it had to interpret the precise meaning and scope of the force majeure clause within the lease agreement, paying close attention to the specific wording and the types of events contemplated by the parties. Secondly, the court had to determine whether the factual circumstances of the event in question fell within that contractual definition, applying the established principles of contractual interpretation.

Judge Newbrun reasoned that the force majeure clause required an event to be both unforeseen and beyond the reasonable control of the party seeking to rely on it, and that it must directly prevent or hinder the performance of the contractual obligation. Applying this to the facts, the judge found that while the event was significant, it did not directly prevent Gaba from paying rent, nor was it entirely unforeseen in the context of the commercial environment. The court therefore concluded that the event did not constitute a force majeure under the lease. The court ordered that Gaba was not excused from its rent obligations.

Orders