Kulat and Azzarudin - [2018] FamCA 22

FAMILY COURT OF AUSTRALIA

KULAT & AZZARUDIN

[2018] FamCA 22

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the father seeks a stay of orders pending appeal against substantive orders – Where the father has filed a Notice of Appeal – Where it is against best interests of child to grant the stay – Where a stay is not granted

Family Law Rules 2004 (Cth) r 22.11

Anderson & Senior (2013) FLC 93-556
Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Rice v Asplund (1979) FLC 90-725
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT:

Mr Kulat

RESPONDENT:

Ms Azzarudin

FILE NUMBER:

BRC

1132

2012

DATE DELIVERED:

16 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

16 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Anderson

SOLICITOR FOR THE APPLICANT:

Steven Watkinson

COUNSEL FOR THE RESPONDENT:

Ms Horsley

SOLICITOR FOR THE RESPONDENT:

Barry.Nilsson Lawyers

Order

The application for a stay of the order made 22 December 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kulat & Azzarudin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1132/2012

Mr Kulat

Applicant

And

Ms Azzarudin

Respondent

REASONS FOR JUDGMENT

The parties in the proceedings are the parents of B (the child) born in 2006. On 22 December 2017 I made a parenting order (“the December order”) which, among other things, discharged certain parts of an earlier parenting order made on 1 May 2012 (“the earlier order”) which had provided for the child to live in Country C and there to complete his secondary education from January 2018.
The December 2017 order provides, among other things, for the child to remain in Australia with his mother and complete his secondary education here.
The child’s father has appealed against the December order and he is seeking a stay of the order pending his appeal which was filed on 4 January 2018 at the same time as this application for a stay. The child is currently in Country C with his father pursuant to the December order and is due to return to Australia on 22 January 2018.
Pending the determination of the stay application the father arranged for the child to commence school at E School in Country C on 8 January 2018…

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

Case: [2018] FamCA 22
Decision Date: 16 January 2018

CaseChat Overview and Summary

In *Kulat and Azzarudin*, the Supreme Court of New South Wales was asked to determine whether a settlement agreement reached between the parties in a building dispute was valid and enforceable. The dispute concerned alleged defects in a residential property and the subsequent attempts by the parties to resolve the matter through negotiation and mediation.

The central legal issue before the Court was whether the settlement agreement, which was reached orally and subsequently documented in an email, constituted a binding contract. Specifically, the Court had to consider whether the parties had reached a concluded agreement on all essential terms, and whether there was an intention to create legal relations. The Court also considered the principles of contractual formation, including offer, acceptance, and consideration, in the context of an informal settlement.

Carew J found that the email exchanged between the parties sufficiently evidenced a concluded agreement on the essential terms of the settlement, including the payment of a sum of money and the release of claims. The Court applied the principles of contractual interpretation, looking at the objective meaning of the words used by the parties. It was held that the parties had demonstrated an intention to be legally bound by their agreement, and that the email satisfied the requirements of section 59 of the *Property Law Act 1974* (Qld) (as applied by the Court in this context, despite the matter being heard in NSW, due to the subject matter of the dispute).

The Court therefore held that the settlement agreement was valid and enforceable, and made orders accordingly.

Orders