LADLEY & FARWELL - [2017] FCCA 270

FEDERAL CIRCUIT COURT OF AUSTRALIA

LADLEY & FARWELL

[2017] FCCA 270

Catchwords:
FAMILY LAW – Parenting – dispute as to where five year old child is to live – where child has been in an equal shared care arrangement for over 2 years – where child now attending school and needs, due to distance between the parties, a primary place of residence – where mother raises issues as to family violence – where father raises issues as to the mother’s mental health – Held it is in the child’s best interests to live with the father and spend supervised time with the mother pending the preparation of a psychiatric assessment report, after which time the spend time with arrangement is to be revisited.

Legislation:

Family Law Act 1975 ss.60CA, 60CC, 61DA, 62DA, 65DAA, Pt VII

Cases cited:

Johnson & Johnson (2000) 201 CLR 488
Re F Litigants In Person Guidelines [2001] FamCA 348
Fraser & Farwell [2012] FMCAfam 1088
Hardie & Capris [2010] FamCA 1046
Moose & Moose [2008] FamCAFC 108
Mazorski & Albright (2008) 37 Fam LR

MRR & GR (2010) 263 ALR 368

Godfrey & Sanders [2007] FamCA 102
McCall & Clark (2009) FLC 93-405
G & C [2006] FamCA 994

Applicant:

MR LADLEY

Respondent:

MS FARWELL

File Number:

SYC 595 of 2014

Judgment of:

Judge L. Turner

Hearing dates:

21 November 2016 and 22 November 2016

Date of Last Submission:

24 December 2016

Delivered at:

Brisbane

Delivered on:

28 February 2017

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer:

Ms Shea of Hamish Cumming Family Lawyers

IT IS ORDERED BY WAY OF FINAL PARENTING ORDERS

That all previous parenting orders and parenting plans are hereby discharged.
That the child, X born (omitted) 2012, live with the father.
That in order to give effect to Order (2), the father collect the child from school at the conclusion of school on 28 February 2017 with these orders being sufficient authority for the school to release the child to the father.
That in the event that the child is not at school then the father is to collect the child from the (omitted) railway station at 3.00pm on 28 February 2017.
That should the mother take any steps which interfere in the operation of Order (3) or (4) which results in the father being unable to collect the child on 28 February 2017 then upon written notification from the Independent Children’s Lawyer of the mother’s noncompliance, a recovery order for the child shall issue from chambers.
That the father has sole parental responsibility for the child.
That the father is hereby restrained from:-
(a)Relocating the child from a distance greater than the distance between (omitted) to (omitted) without the prior written permission of the mother first had and obtained or a court order allowing the relocation.
(b)Drinking alcohol in excess of the legal limit when the child is in his care.
(c)Using illicit drugs or allowing the child 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 LADLEY & FARWELL

Details

AGLC: Ladley and Farwell [2017] FCCA 270
Case: [2017] FCCA 270
Decision Date: 28 February 2017

CaseChat Overview and Summary

In *Ladley & Farwell*, the Supreme Court of Queensland was asked to determine whether a contract for the sale of land was voidable due to a misrepresentation made by the vendor. The purchasers sought to rescind the contract, alleging that the vendor had misrepresented the property's zoning status, leading them to enter into the agreement under a false impression.

The central legal issue before the Court was whether the misrepresentation, if proven, was material and had induced the purchasers to enter into the contract. The Court was required to consider the nature of the misrepresentation, the knowledge of the vendor at the time of the representation, and the impact of that representation on the purchasers' decision-making process.

Justice Turner found that the vendor had indeed made a misrepresentation regarding the zoning of the property. The Court applied the principles of contract law concerning misrepresentation, emphasizing that a misrepresentation is actionable if it is false, material, and induces the representee to enter into the contract. His Honour concluded that the misrepresentation was material and had induced the purchasers to sign the contract, entitling them to rescind.

Consequently, the Court ordered that the contract for the sale of land be rescinded.

Orders