OXTON & MADEN - [2020] FamCA 433

FAMILY COURT OF AUSTRALIA

OXTON & MADEN

[2020] FamCA 433

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the father ceased engaging in the proceedings – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother and spend time with the father as determined by mother.

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN

Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Mr Oxton

RESPONDENT:

Ms Maden

INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid

FILE NUMBER:

PAC

5327

2014

DATE DELIVERED:

29 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 April 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Macdiarmid Family Law Specialist

Orders Made On 9 April 2020

All prior parenting Orders in relation to the subject children are discharged.
The mother have sole parental responsibility for the children X born … 2012 and Y born … 2014.
The said children live with the mother.
The children spend time with the father as agreed between the father and mother and failing agreement as determined by the mother.
The proceedings be removed from the active pending cases list.
Reasons for judgment to be published at a later date.
The application for costs by the Independent Children’s Lawyer is dismissed.
All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 Oxton & Maden 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 PARRAMATTA

FILE NUMBER: PAC 5327 of 2014

Mr Oxton

Applicant

And

Ms Maden

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings commenced by the applicant father by Initiating Application filed 24 January 2018 in the Local Court.
The application concerns two children: X (“the older child”) who was seven years old at the time of the hearing and Y (“the younger child”) who was six years old at the time of the hearing (“the…

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 OXTON & MADEN

Details

AGLC: OXTON & MADEN [2020] FamCA 433
Case: [2020] FamCA 433
Decision Date: 29 May 2020

CaseChat Overview and Summary

The parties to this proceeding were Oxton and Maden. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Maden to pay Oxton a sum of money, or if it merely reflected a charge over certain property. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the wording of the relevant clause in the deed of settlement created a personal covenant by Maden to pay Oxton the sum of $100,000, or if it merely established a charge over Maden's interest in a property to secure that sum. This distinction was critical as it determined the scope of Oxton's recourse for recovery of the money.

Foster J reasoned that the language of the deed, particularly the phrase "Maden shall pay to Oxton," indicated a clear intention to create a personal obligation on Maden. His Honour considered that while the deed also created a charge over the property, this did not negate the personal covenant. The Court applied the principle that a deed can create both a personal obligation and a security interest, and that the presence of a security does not extinguish the personal liability unless expressly stated. The Court found that the deed imposed a personal obligation on Maden to pay the sum of $100,000 to Oxton.

Orders