FAMILY COURT OF AUSTRALIA
| PETER & ELSPETH (CONTRAVENTION) | [2007] FamCA 96 |
| FAMILY LAW – Contravention – Suspended sentence |
| APPLICANT: | PETER |
| RESPONDENT: | ELSPETH |
| INDEPENDENT CHILDREN’S LAWYER: | MR FITZGERALD and MR WATERHOUSE |
| FILE NUMBER: | HBF | 150 | of | 2003 |
| DATE DELIVERED: | 20 February 2007 |
| PLACE DELIVERED: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGuire |
| COUNSEL FOR THE RESPONDENT: | Mr Murray |
Orders
IT IS NOTED
THAT there is a determination made 20 February 2007 that E [“the mother”] has contravened an order of this court made 21 December 2006 and further that Mr S and G have each aided and abetted the contravention of the said order.
IT IS ORDERED
(a) THAT by way of compensatory time that the children, J born January 1994 and C born December 1998 (“the children”) spend time with the father from 5.00pm on Sunday 8 April 2007 until 9.00am Sunday 15 April 2007.
(b)THAT the children are to be delivered by or on behalf of the mother to the father’s home and if on behalf of the mother, to be by one of the adult female siblings of the children (including M) or such other person as is agreed in writing between the parties AND IT IS NOTED that the mother may bring with her any of the adult female daughters of the parties such as she considers appropriate.
(c)THAT the parenting orders of 21 December 2006 be varied to provide that the children are to be delivered to the father at his home in P by the mother or on behalf of the mother and if on behalf of the mother, to be by one of the adult female siblings of the children (including M) or such other person as is agreed in writing between the parties AND IT IS NOTED that the mother may bring with her any of the adult female daughters of the parties such as she considers appropriate.
(a) THAT the father return the children to the mother’s home at the conclusion of spending time with the children.
(b)THAT if there is a weekend when the father is to spend time with the children L, J and C, then L is to be delivered to the father’s home by the mother in accordance with order 3(a) above and the father is to return L to an address nominated by the mother within ten kilometres of the father’s home.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT the respondents pay all of the costs of the applicant and the Independent Children’s Lawyer in respect of the contravention proceedings as agreed or as determined under the Rules of Court.
IT…
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- AGLC
- Peter & Elspeth (Contravention) [2007] FamCA 96
- Case
- [2007] FamCA 96
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the financial agreement was void under section 90K(1)(c) of the Act, on the grounds that it was obtained by fraud, duress, or undue influence, or by other conduct that was unconscionable. The applicants also contended that the agreement was void under section 90K(1)(d) of the Act, due to material misrepresentations made by the respondent.
Benjamin J considered the evidence presented by both parties, including affidavits and oral testimony. His Honour analysed the circumstances surrounding the formation of the financial agreement, paying close attention to the communications between the parties and their legal representatives. The court applied the principles established in cases concerning unconscionable conduct and misrepresentation in contract law, as well as the specific provisions of the Act relating to financial agreements. His Honour found that the applicants had not discharged the onus of proof required to establish fraud, duress, undue influence, or unconscionable conduct. Furthermore, the court determined that no material misrepresentations had been made that would render the agreement void.
Consequently, the application to set aside the financial agreement was dismissed.
Orders
Orders of the court
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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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