RESIDENCE - Application to vary existing orders – Whether test in Rice v Asplund (1979) FLC 90-725 had application – If applicable, whether test satisfied – Interest of child paramount consideration – CDJ v VAJ (1998) FLC 92-828, Bennett v Bennett (1991) FLC 90-126, and The Marriage of D v Y (1995) FLC 92-581 considered.

This was an appeal by the husband against orders of a Federal Magistrate. The husband sought to vary residence orders recently made by Moore J following a hearing.

The Magistrate at all times indicated to the husband and wife that she proposed to apply a threshold test, which she described as the test in Rice v Asplund.

At the hearing the learned Magistrate dealt with the matter by application of the threshold test and dismissed the husband’s application.

The husband argued firstly that the rule in Rice v Asplund had no application. The husband relied on the ‘paramountcy principle’.

Further, he argued that even if there was a threshold test applicable, then he had satisfied that test by the material placed before the court.

The husband’s appeal was dismissed on the basis that there was the power in the Federal Magistrate to deal with the matter in the way she did, and it was a matter of her discretion as to the manner in which she dealt with the matter. It was further held that the test having been found to have application, the husband did not satisfy the test so as to demonstrate a need for re-litigation. Orders were made by the consent of the parties in relation to the provision of photographs. An order was made for costs in favour of the respondent.

APPEAL DISMISSED

The Appeal

The appellant appeals against the decision of a Federal Magistrate. On 7 December 2000 Federal Magistrate Ryan dismissed the application of the husband, contained in his amended application filed on 5 December 2000 (see Appeal Book page 16).

In that amended application the appellant sought orders relating to three children, N, born 3 January 1990, B, born 10 July 1991, and G, born 16 June 1993. The effect of the orders sought by the husband was to increase the time the children spent with him, by giving him up to four hours on one occasion in each alternate week, and by giving him one or perhaps two days coinciding with public holidays in each year.

The husband had also sought orders in respect to…

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 King & Finneran

Details

AGLC: King & Finneran [2001] FamCA 344
Case: [2001] FamCA 344
Decision Date: 28 May 2001

CaseChat Overview and Summary

In the matter of *King & Finneran*, Collier J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a deed of settlement and release. The applicants, King and Finneran, sought to set aside the deed, alleging it was void due to a fundamental mistake. The respondents, who were the other parties to the deed, contended that the deed was valid and binding.

The central legal issue before the Court was whether a mutual mistake, alleged by the applicants to have been made by all parties at the time of entering into the deed, was so fundamental as to render the deed void. Specifically, the Court had to determine if the mistake related to the very foundation of the contract, such that the parties did not intend to be bound by the agreement as it was ultimately understood.

Collier J applied the principles governing the avoidance of contracts due to fundamental mistake. Her Honour considered the nature of the mistake alleged, examining whether it was a mistake as to the existence of a state of affairs that was essential to the contract. The Court analysed the terms of the deed and the surrounding circumstances to ascertain the common intention of the parties. Ultimately, Collier J found that the mistake alleged by the applicants was not of such a fundamental nature as to vitiate the deed, and therefore the deed remained valid and binding.

Orders