PALMERO & FABIEN - [2018] FCCA 755

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMERO & FABIEN

[2018] FCCA 755

Catchwords:
FAMILY LAW – Parenting –dispute as to where 7 year old is to live – where mother maintains father is unacceptable risk to the child – where father maintains that a relationship between father and child will not occur if child remains with mother – Held in best interests of child to live with father, for there to be a moratorium of time between mother and child of two months and for the mother to spend time with child progressing to overnight and holiday time.

Legislation:

Family Law Act 1975, ss.60CA, 61DA, 65DAA, pt VII

Cases cited:

Johnson & Johnson (2000) 201 CLR 488
Re F Litigants in Person Guidelines [2001] FamCA 348
Hardie & Capris [2010] FamCA 1046
Moose & Moose [2008] FamCAFC 108
Mazorski v Albright (2007) 37 Fam LR
MRR v GR (2010) 263 ALR
Godfrey & Sanders (2007) 208 FLR 287
McCall & Clark (2009) FLC 93-405
G & C [2006] FamCA 994
Briginshaw v. Briginshaw (1938) 60 CLR 336
Johnson & Page [2007] FamCA 1235
R & R : Childrens’ Wishes [2000] FamCA 43
Doyle & Doyle (1992) FLC 92-286
Hon. John Fogarty A.M. ‘Unacceptable risk – A return to basics’ within the Australian Journal of Family Law

Applicant:

MR PALMERO

Respondent:

MS FABIEN

File Number:

BRC 8192 of 2014

Judgment of:

Judge L. Turner

Hearing dates:

12 February 2018 and 13 February 2018

Date of Last Submission:

13 February 2018

Delivered at:

Brisbane

Delivered on:

29 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Ehlers

Solicitors for the Applicant:

CQ Legal

The Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Ms McArdle

Solicitors for the Independent Children's Lawyer:

C M Bint Family Lawyers

FINAL PARENTING ORDERS

That all previous parenting plans and parenting orders are hereby discharged.
That forthwith the child, [X] born 2010 (“the child”), live with the father.
That the father have sole parental responsibility for the child.
That in exercising sole parental responsibility, the father consult with the mother about the decision to be made and where possible reach agreement about the decision.
That in the event of a disagreement about the decision, the father make the decision for the child and inform the mother of the decision made.
That a moratorium on any spend time with arrangements and communication between the child and the mother is imposed for a period of two (2) months from the date hereof.
That at the expiration of the moratorium period as referred to in Order (6), the mother spend time with the child as agreed in writing between the parties and failing agreement as follows:
(a)For a period of three (3) months for two (2) hours each fortnight such time to be supervised at the Town A Contact Centre.
(b)At the expiration of time in accordance with Order (7)(a) for a period of three (3) months for four (4) hours each fortnight from 10.00am to 2.00pm on a non-school…

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 PALMERO & FABIEN

Details

AGLC: PALMERO & FABIEN [2018] FCCA 755
Case: [2018] FCCA 755
Decision Date: 29 March 2018

CaseChat Overview and Summary

In *Palmero & Fabien*, the Supreme Court of Victoria was asked to determine whether a party to a contract for the sale of land was entitled to terminate the contract due to the other party's failure to comply with a notice to complete. The dispute arose after the vendor issued a notice to complete to the purchaser, alleging a breach of contract. The purchaser subsequently failed to complete the sale by the date specified in the notice, prompting the vendor to seek to terminate the agreement.

The central legal issue before the Court was whether the notice to complete was valid and effective in law. Specifically, the Court had to consider whether the notice complied with the requirements of the contract and relevant legislation, and whether the vendor's conduct in issuing the notice and subsequently seeking to terminate was permissible. The Court also considered the principles governing the exercise of a right to terminate a contract for breach.

L. Turner J found that the notice to complete was indeed valid and effective. The Court applied the principles of contractual interpretation, holding that the notice clearly and unambiguously specified the date for completion and the consequences of non-compliance. Furthermore, the Court determined that the vendor had not waived its right to rely on the notice, nor had it acted in a manner that would estop it from terminating the contract. The Court emphasised that a party is generally entitled to exercise its contractual rights, provided it does so in accordance with the terms of the agreement.

The Court ordered that the contract was validly terminated by the vendor.

Orders