McGee & Duchampes - [2010] FamCA 1230

FAMILY COURT OF AUSTRALIA

MCGEE & DUCHAMPES AND ORS

[2010] FamCA 1230

FAMILY LAW – CONSENT ORDERS – Children

APPLICANT:

Mr McGee

RESPONDENTS:

Ms Duchampes
Mr Crown
Ms Crown

FILE NUMBER:

SYC

6403

2010

DATE DELIVERED:

12 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

2 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

SOLICITOR FOR THE FIRST RESPONDENT:

Anne-Marie van der Schyff Attorneys
South Africa

SOLICITOR FOR THE SECOND

RESPONDENT:

Carlisle Attorneys

SOLICITOR FOR THE THIRD

RESPONDENT:

McPherson Kruger Attorneys
South Africa

IT IS NOTED that publication of this judgment under the pseudonym McGee & Crown and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6403 of 2010

MR MCGEE

Applicant

And

MS DUCHAMPES
MR CROWN
MS CROWN

Respondents

REASONS FOR JUDGMENT

On 11 October 2010 Mr McGee applied for consent orders in relation to the child K. She was born in December 2009 and is eleven months old. The recitals to the proposed consent orders set out that the second respondent, Mr Crown is the partner of the applicant. The first respondent, Ms Duchampes, is the surrogate mother who gave birth to the child. The third respondent, Ms Crown, who is the sister of Mr Crown, provided the egg for the conception of the child.
Ms Crown and Ms Duchampes both live permanently in South Africa. It is proposed that Ms Crown will spend some time with the child but it seems that Ms Duchampes will play no role in her life.
Mr McGee and Mr Crown have consent orders in relation to a child, C who was born in November 2005 and is now almost five years old. These orders, which were made on 3 April 2006, provide that C live with them and have reasonable contact with her mother. The orders provide, further, that Mr McGee and Mr Crown are jointly responsible for C’s care and welfare and long term education and development.
The application for consent orders came before a Registrar, who referred the proceedings to me in a duty list. I was satisfied that it is appropriate to make orders as sought and I did so on 2 November 2010, subject to a stay for seven days for reasons to which I refer below. I now furnish my reasons for concluding that it is appropriate to make these orders notwithstanding the provisions of section 65G of the Family Law Act.
The application contained affidavits purportedly sworn in South Africa by Ms Duchampes and Ms Crown, witnessed respectively by lawyers Ms Anne Marie Van Der Schyff and JG McPherson. I was handed two unfiled documents purporting to be Notices of Address for Service for these respondents, containing the names and purported signatures of the same lawyers.
There was some question as to whether the first and third respondents were aware of the date when the proceedings were before the court.…

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 McGee & Duchampes

Details

AGLC: McGee & Duchampes [2010] FamCA 1230
Case: [2010] FamCA 1230
Decision Date: 12 November 2010

CaseChat Overview and Summary

In *McGee & Duchampes*, Stevenson J of the Supreme Court of Victoria was required to determine a dispute between the parties concerning the interpretation of a clause within a commercial lease agreement. The central issue revolved around whether the tenant, McGee, was entitled to exercise an option to renew the lease under specific conditions stipulated in the agreement, or if the landlord, Duchampes, was justified in refusing the renewal.

The primary legal question before the court was whether McGee had satisfied the preconditions for exercising the option to renew the lease as outlined in clause 15 of the lease. Specifically, the court had to consider whether McGee had complied with the notice requirements and whether the tenant had met its obligations regarding the payment of rent and outgoings up to the date of the notice. The court also had to determine the legal effect of any alleged breaches by McGee on its ability to exercise the option.

Stevenson J applied the principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used in the lease agreement, read in their commercial context. The court found that clause 15 required strict compliance with its terms for the option to be validly exercised. After examining the evidence, Stevenson J concluded that McGee had failed to meet a crucial precondition relating to the timely payment of all rent and outgoings. Consequently, the court held that McGee was not entitled to exercise the option to renew the lease.

Orders