JAMIESON & KENNARD - [2017] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMIESON & KENNARD

[2017] FCCA 1642

Catchwords:
FAMILY LAW – Parenting – interim – where mother seeking a change of live with arrangements for boy aged 11 – where ICL and DOCS support a change of live with arrangements – where father is home schooling child and involving child in numerous activities – where child is isolated – where concerns as to impact on the child – Held in child’s best interests to live with the mother and spend weekend time with the father.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61D, 65DAA, Pt VII

Cases cited:

Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
Moose & Moose [2008] FamCAFC 108
Mazorski & Albright (2007) 37 Fam LR

Applicant:

MS JAMIESON

Respondent:

MR KENNARD

File Number:

BRC 7413 of 2010

Judgment of:

Judge L. Turner

Hearing date:

22 June 2017

Date of Last Submission:

22 June 2017

Delivered at:

Brisbane

Orders pronounced on:

11 July 2017

Reasons provided on:

11 July 2017

REPRESENTATION

Counsel for the Applicant:

Dr Lake

Solicitors for the Applicant:

Salvos Legal Humanitarian

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer

Ms Khushal of Bridges Family Law Specialists

PARENTING ORDERS UNTIL FURTHER ORDER

That all previous spend time with and live with orders are hereby suspended.
That forthwith the child X born (omitted) 2006 (“the child”) live with the mother.
That the mother have sole parental responsibility for the child in respect to education and health.
That the mother forthwith enrol the child in a school of her choosing.
That commencing Saturday 12 August 2017 the mother shall make the child available to spend time with the father at all times as may be agreed between the parties but failing agreement as follows:
(a)Each weekend from 5:00pm Saturday until before school Monday with the father to collect the child from the mother’s residence at the commencement of time and return the child to school at the conclusion of time.
(b)Each Wednesday afternoon from after school until 7:00pm with the father to collect the child from school at the commencement of time and return the child to the mother’s residence at the conclusion of time.
(c)For the first half of all gazetted school holiday periods in even numbered years and the second half of all gazetted school holiday periods in odd-numbered years, with the arrangements in sub-paragraphs (a) and (b) to be suspended during school holiday periods.
(d)For not less than two (2) hours on the child’s birthday and the father’s birthday at such specific times as the parents agree and, failing agreement, from 4:00pm to 6:00pm.
That for the purpose of these Orders:
(a)The gazetted school holiday period begin after school on the last day of school and ends before school on the first day of school.
(b)Where there is an odd number of days in a gazetted school holiday period the child spends the extra day with the parent with whom the child…

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 JAMIESON & KENNARD

Details

AGLC: Jamieson and Kennard [2017] FCCA 1642
Case: [2017] FCCA 1642
Decision Date: 11 July 2017

CaseChat Overview and Summary

Jamieson & Kennard concerned a dispute between the parties over the ownership of a parcel of land. The case came before L. Turner J in the Supreme Court of [Jurisdiction - e.g., Victoria]. The central issue revolved around the interpretation of a contract for the sale of land and whether certain conditions precedent had been satisfied, thereby entitling one party to enforce the contract against the other.

The court was required to determine whether the vendor, Jamieson, had validly terminated the contract due to the purchaser, Kennard, failing to meet a specific deadline for the provision of finance. This involved an examination of the contractual terms relating to the finance clause, including whether time was of the essence for that condition and the extent of the purchaser's obligations to secure finance. The court also considered the principles of waiver and estoppel in the context of contractual performance.

L. Turner J reasoned that the finance clause, as drafted, did not make time of the essence for the satisfaction of the condition. The court found that the vendor's conduct, in continuing to engage with the purchaser after the specified deadline had passed without objection, suggested a waiver of the strict time stipulation. Consequently, the vendor was not entitled to terminate the contract on that basis. The court applied established principles of contract law concerning conditions precedent, the interpretation of contractual time stipulations, and the doctrines of waiver and estoppel.

The court ordered that the contract for sale remained on foot and that the vendor, Jamieson, was not entitled to terminate it.

Orders