PRICE & PRICE - [2015] FCCA 701

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRICE & PRICE

[2015] FCCA 701

Catchwords:
FAMILY LAW – Parenting – interim relocation – serious allegations by each party – mental health, alcohol drug use and abuse, sexual abuse, violence – how to deal with allegations of domestic violence in an interim application – consideration of what corroboration there might be and the consequences for each party if some initial findings were made – rebuttal of presumption of equal shared parental responsibility – consideration of and balance of “Primary considerations”.

Legislation:
Family Law Act 1975 (Cth), ss.4A, 60CA, 60CC, 61D, 61DA(2), (2A) and (3), 65DAA
Federal Circuit Court Rules 2001, r.8

C and S [1998] FamCA 66
Morgan & Miles (2007) FLC 93-343
Goode and Goode (2006) FLC 93-286
Cowling v Cowling (1998) FLC 92-801
Deiter& Deiter [2011] FamCAFC 82
Jamal & Maalouf [2008] FMCAfam 1406

Applicant:

MR PRICE

Respondent:

MS PRICE

File Number:

TVC 30 of 2015

Judgment of:

Judge Coker

Hearing date:

18 February 2015

Date of Last Submission:

18 February 2015

Delivered at:

Townsville

Delivered on:

19 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Honchin

Solicitors for the Applicant:

Gun Lawyers

Counsel for the Respondent:

Mr Fellows

Solicitors for the Respondent:

MacDonnells Lawyers

ORDERS UNTIL FURTHER ORDER

That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2010 and Y born (omitted) 2012, subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health; and
(d)a child’s name.
That notwithstanding order 1 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are spending time with him.
That the children live with the Mother in (omitted), Victoria.
That the Father spend time with the children in (omitted), Victoria at all reasonable times as may be agreed between the parties and in particular, between 8:00am and 6:00pm each day for up to seven (7) consecutive days, with no less than twenty-one (21) days between each period of time spent by the Father with the children.
That the Father have telephone communication with the children at all reasonable times and in particular, at 5:30pm (Queensland time) each day, with the Father to be responsible for making the call and the Mother to ensure that the children are available to receive the telephone call in a quiet and private environment.
That the costs be reserved and the matter be certified for counsel.
That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001 the venue for the hearing of the application filed on 13 January 2015 be changed to the Federal Circuit Court of Australia in Melbourne for mention at 9:45am on 18 May…

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.

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Details

AGLC: PRICE & PRICE [2015] FCCA 701
Case: [2015] FCCA 701
Decision Date: 19 February 2015

CaseChat Overview and Summary

In the matter of *Price & Price*, Justice Coker of the Supreme Court of Victoria considered a dispute concerning the interpretation of a deed of settlement and its impact on the rights of the parties. The case involved an application to enforce certain terms of the deed, which had been entered into to resolve prior litigation between the parties.

The central legal issue before the Court was whether the respondent had breached the terms of the deed of settlement by failing to make a payment as stipulated. This required the Court to construe the relevant clauses of the deed, particularly those relating to the timing and conditions precedent to payment, and to determine if those conditions had been met or waived.

Justice Coker's reasoning focused on the plain language of the deed and the surrounding circumstances at the time of its execution. The Court applied principles of contractual interpretation, emphasizing that the intention of the parties, as evidenced by the words they used, was paramount. His Honour found that the respondent's obligation to pay was contingent upon the fulfilment of certain conditions, which had not been satisfied. Consequently, the Court held that no breach had occurred.

Orders