Newbery and Wolseley - [2015] FCCA 92

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWBERY & WOLSELEY

[2015] FCCA 92

Catchwords:
FAMILY LAW – Parenting – interim arrangements – court urged to take a cautious approach – consideration of what ‘caution’ means.

Legislation:

Family Law Act 1975, ss.4AB, 13C, 60B, 60CA, 60CC, 60CC(2), 61C, 61DA, 65DAA(5), 65DAC

Evidence Act 1995 (Cth), s.69

B & B (1993) FLC 92-357
M & M [1988] HCA 68
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235

Jones & Dunkel (1959) 101 CLR 298
Brandi v Mingot (1976) 12 ALR 551

Deacon & Castle [2013] FCCA 691

Stevenson & Hughes (1993) FLC 92-363

Family Violence Best Practice Guidelines 3.1

Applicant:

MR NEWBERY

Respondent:

MS WOLSELEY

File Number:

PAC 244 of 2014

Judgment of:

Judge Harman

Hearing date:

28 August 2014

Date of Last Submission:

28 August 2014

Delivered at:

Parramatta

Delivered on:

12 February 2015

REPRESENTATION

Solicitors for the Applicant:

Mr Harper of Ian Harper & Co

Counsel for the Respondent:

Mr Schonell

Solicitors for the Respondent:

Cls Legal

Independent Children’s Lawyer:

Ms Coady of Louise Coady Family Lawyers Pty Limited

ORDERS

IT IS NOTED that the material produced on subpoena by the [S] Hospital is released to the legal representatives of the parties.
Leave is granted to the Respondent to file in Court today an Affidavit.
Discharge all and any prior parenting orders with respect to the children [X] born [omitted] 2010 and [Y] born [omitted] 2011.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for [X] and [Y] at such times as they are in their respective care.
Pending further order, the children shall spend time with their mother:
(a)Each weekend from 6pm Saturday until no later than 10am Monday;
(b)From 12noon until 6pm Christmas Day; and
(c)From 10.30am until 6pm each Wednesday;
For the purpose of the above time occurring the mother shall be responsible for causing the children to be collected and returned to either their day care centre (if a day care attendance day) or the father’s home.
Pending further order, the children shall at all times other than when they are spending time with their mother spend time with their father.
The mother’s time with the children shall be subject to the following terms and conditions:
(a)The mother shall at all times continue to attend upon her general practitioner and treating psychologist and psychiatrist with such frequency as they may advise and the mother shall forthwith authorise, direct and instruct each of those persons in writing to disclose and provide to the Independent Children’s Lawyer:
(i)Any information the Independent Children’s Lawyer may request; and
(ii)Advise contemporaneous with the event should the mother terminate her therapeutic relationship with those professionals or decline to accept further treatment from them which those professionals or any of them consider necessary (including through ceasing to take medication prescribed other than when in consultation with the prescriber);
(b)The children shall sleep on each and every night when in their mother’s care…

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 Newbery and Wolseley

Details

AGLC: Newbery and Wolseley [2015] FCCA 92
Case: [2015] FCCA 92
Decision Date: 12 February 2015

CaseChat Overview and Summary

In *Newbery and Wolseley*, the parties were the vendor and purchaser of a property. The dispute concerned the purchaser's entitlement to terminate the contract of sale due to the vendor's alleged failure to provide a crucial document, a Section 71 certificate, by the settlement date. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the vendor's failure to provide the Section 71 certificate by the settlement date constituted a breach of a condition precedent to settlement, thereby entitling the purchaser to terminate the contract. The court was required to interpret the terms of the contract and the relevant statutory provisions governing the sale of land.

Judge Harman reasoned that the contract stipulated that the vendor was to provide the Section 71 certificate at settlement. The court found that the vendor's failure to do so was a breach of this contractual obligation. Crucially, the court determined that the provision of the certificate was a condition precedent to the purchaser's obligation to settle. As such, the purchaser was entitled to terminate the contract. The court ordered that the contract be terminated and that the vendor repay the deposit to the purchaser.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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