KESSLER & KESSLER - [2019] FamCA 672

FAMILY COURT OF AUSTRALIA

KESSLER & KESSLER

[2019] FamCA 672

FAMILY LAW – CHILDREN – Interim Parenting – Where the parties reached agreement as to some interim parenting orders – Where there are concerns about the mother’s alcohol use – Where the father contends that the mother poses an unacceptable risk of harm to the children if she were to spend overnight time with them

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter& Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Kessler

RESPONDENT:

Ms Kessler

INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

FILE NUMBER:

PAC

2018

DATE DELIVERED:

18 September 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Nexus Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shedden

Pending Further Order

That all previous parenting orders be discharged.
That the children W born … 2006 and X born … 2009 (“the younger children”) live with the father.
That the mother spend time with the younger children every Sunday from 9.00am to 5.00pm with changeover to occur at the McDonald’s at Suburb A
That the children Y born … 2003 and X born … 2004 (“the older children”) live with each parent in accordance with their wishes.
That the mother shall spend time with the younger children over the Christmas period as agreed between the parties providing that any such time does not include overnight time.
That the mother be permitted to attend the children’s sporting activities.
In the event that any child of the marriage suffers a serious medical condition or requires hospitalisation while in the care of either party:
(a) the other party is to be provided with full details of the practitioner or hospital upon which the child attends as soon as practicable;
(b) if necessary, the parties give consent to the practitioner or facility to discuss with each party the child’s condition.
That each party shall sign all documents necessary to authorise and direct any school attended by the children to discuss with each party, the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the school and distributed to parents or relating to the children specifically.
Each party is restrained from making critical remarks in relation to the other party in the presence and/or hearing of the children and do all things necessary to ensure that no third party makes critical remarks about the other party in the presence and/or hearing of the children including in relation to any illness alleged to be suffered by…

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.

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Details

AGLC: KESSLER & KESSLER [2019] FamCA 672
Case: [2019] FamCA 672
Decision Date: 18 September 2019

CaseChat Overview and Summary

The parties to this proceeding were Kessler & Kessler (the applicant) and Kessler & Kessler (the respondent). The applicant sought to have a deed of settlement, entered into between the parties on 15 March 2019, set aside. The dispute concerned allegations of misleading and deceptive conduct and unconscionable conduct in relation to the negotiation and execution of the settlement deed. The matter came before Hannam J in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the applicant had been induced to enter into the settlement deed by misleading or deceptive conduct, or by unconscionable conduct, on the part of the respondent. The applicant also sought to argue that the deed was void or voidable due to these alleged breaches.

Hannam J considered the evidence presented by both parties regarding the circumstances surrounding the negotiation of the settlement deed. The court analysed the conduct of the respondent in light of the relevant provisions of the Australian Consumer Law and the equitable principles governing unconscionable conduct. The judge carefully examined the communications between the parties and the information that was or was not disclosed during the settlement process. The court applied established legal principles concerning the elements required to establish misleading or deceptive conduct and unconscionable dealing, including the need for a special disadvantage and exploitation of that disadvantage.

The court ultimately found that the applicant had not established the necessary elements for either misleading or deceptive conduct or unconscionable conduct. Accordingly, Hannam J dismissed the application to set aside the deed of settlement.

Orders