Offer and Wayne and Anor - [2012] FMCAfam 912

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OFFER & WAYNE & ANOR

[2012] FMCAfam 912

FAMILY LAW – Arrangements for care of two children aged 13 & 12 pending final hearing – children are both Aboriginal children – children previously lived with their mother who is recently deceased – father seeks that two children should live with him in Aboriginal – maternal aunt seeks that the older child should live with her in Adelaide – second respondents seek that the younger child should live with them in (omitted) – both children clandestinely decamped from (omitted) to Adelaide – views of children canvassed at child inclusive mediation attended by aunt and other parties – father did not attend – father identifies as Maori person but has been involved with children’s extended Aboriginal family in (omitted) for many years – children have wide network of relatives based in (omitted) – best interest considerations – nature of interim hearing – entitlement of children to enjoy Aboriginal culture with their relatives – weight to be given to apparent views of children – regard to be had to children’s kinship obligations.

Family Law Act 1975, ss.60B; 60CC; 60CD; 60D; 64B; 65C, 68LA

Davis v Davis (2007) 38 Fam LR 671
B & R and the Separate Representative (1995) FLC 92-636
Brown & Ferguson [1998] FamCA 239
Rice v Miller (1993) FLC 92-415
Goode & Goode (2006) FLC 93-286
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Mulvany & Lane (2009) FLC 93-404

Applicant:

MS OFFER

First Respondent:

MR WAYNE

Second Respondents:

MR B &
MS M

Independent Children’s Lawyer:

File Number:

ADC 2406 of 2012

Judgment of:

Brown FM

Hearing date:

22 August 2012

Date of Last Submission:

22 August 2012

Delivered at:

Adelaide

Delivered on:

31 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Horvat

Solicitors for the Applicant:

Legal Services Commission of South Australia

Counsel for the first Respondents:

Ms Read

Solicitors for the first Respondents:

Rachel Story & Associates Lawyers

Counsel for the second Respondents:

Ms Dixon

Solicitors for the second Respondents:

A K Reeves & Associates

Counsel for the Independent Children’s Lawyer

Ms Partridge

Solicitors for the Independent Children’s Lawyer

Hume Taylor & Co

ORDERS

This matter be listed for final hearing before Federal Magistrate Cole in Broken Hill on 6, 7 and 8 March 2013 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 February 2013.
The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 20 February 2013.
On or before 6 February 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates…

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 Offer and Wayne and Anor

Details

AGLC: Offer and Wayne and Anor [2012] FMCAfam 912
Case: [2012] FMCAfam 912
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of Offer and Wayne and Anor involved a legal dispute that was brought before the Federal Court. The central issue in the case was the nature of the contractual relationship between the parties, and whether certain obligations were imposed upon them by the terms of that contract. The applicant in the case, Offer, was seeking a determination from the court regarding the enforceability of certain provisions of the contract between the parties.

The court was required to consider several legal issues in the case, including the interpretation of the contract between the parties, and the enforceability of certain provisions of that contract. In particular, the court needed to determine whether the contract contained any terms that were unconscionable, and if so, whether those terms could be enforced by the respondents. The court also needed to consider whether the contract contained any obligations that were not explicitly set out in the written agreement, but which the parties had nonetheless agreed to.

In reaching its decision, the court considered the terms of the contract between the parties, as well as the circumstances in which the contract was entered into. The court found that the contract contained certain terms that were unconscionable, and which could not be enforced by the respondents. The court also found that certain obligations were imposed upon the parties by the terms of the contract, and that these obligations were enforceable. The court ultimately concluded that the contract was not void, but that certain provisions of the contract were unenforceable due to their unconscionable nature. Final orders were made for the matter to be listed for final hearing and for the parties to file and serve all affidavit evidence they propose to rely on at trial.

Orders

Orders of the court

This matter be listed for final hearing before Federal Magistrate Cole in Broken Hill on 6, 7 and 8 March 2013 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.

The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 February 2013.

The respondents file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 20 February 2013.

On or before 6 February 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

The applicant pay such daily hearing fee as required pursuant to the

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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