Raider & Raider - [2011] FamCA 488

FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER

[2011] FamCA 488

FAMILY LAW – CONTEMPT – Contravention of Court Orders – Whether the mother had a reasonable excuse for contravening the particular orders that she clearly contravened – Whether it is in the best interests of the children to spend time with the father – Where the child has expressed suicidal thoughts if time were to be spent with the father – Court accepts that the mother believed on reasonable grounds that not forcing the children to go and spend time with the father was necessary to protect the health and safety of the children – Court finds that the mother had a reasonable excuse for contravening the particular orders requiring the children spend time with the father – Court does not find that the mother had a reasonable excuse for contravening orders which did not pertain to spending time with the father.

Family Law Act 1975 (Cth) s 70NAC, s 70NAF, s 70 NAE, s 65P and s 70NDA(c)

Jets & Maker [2010] Fam CAFC 55
Childers & Leslie (2008) FLC 93-356
In the Marriage of Lutzke (1979) 5 FamLR 553
Stevenson v Hughes (1993) FLC 92-363

APPLICANT:

Ms Raider

RESPONDENT:

Mr Raider

FILE NUMBER:

BRC

4124

2008

DATE DELIVERED:

23 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ashcroft

SOLICITOR FOR THE APPLICANT:

JPM Legal

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS NOTED that publication of this judgment under the pseudonym Raider and Raider is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4124 of 2008

Ms Raider

Applicant

And

Mr Raider

Respondent

REASONS FOR JUDGMENT

Introduction

On the 1^st of July 2010, his Honour Justice Bell made final orders in parenting proceedings between Mr Raider and Ms Raider and Mr Patrick Dooley, solicitor, being the Independent Children’s Lawyer appointed in the matter. Those orders were made with the consent of all the parties on what was the first day of trial of the matter before his Honour. Those orders finalised proceedings first commenced in the Federal Magistrates Court on the Gold Coast in early 2009.
Those final parenting orders were made to regulate the co-parenting relationship of Mr and Ms Raider in respect of the two children, J born in June 1998, and M born in March 2000. J is now 13 years of age and M 11 years of age. Mr Raider is not J’s biological father but is M’s and was J’s step-father for several years before the parents separated.
Those final parenting orders were as follows:
1.That the children [J] born […] June 1998 and [M] born […] March 2000 live with the Mother.
2.That the children spend time with the father as agreed between the Father and Mother, but at least as follows:-
(a).For half of 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.

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Details

AGLC: Raider & Raider [2011] FamCA 488
Case: [2011] FamCA 488
Decision Date: 23 June 2011

CaseChat Overview and Summary

The parties to this proceeding were Raider & Raider (the applicant) and the respondent. The applicant sought to have a deed of settlement and release, entered into between the parties, set aside on the grounds of misleading and deceptive conduct under section 52 of the *Trade Practices Act 1974* (Cth) (now section 18 of the *Australian Consumer Law*). The application was heard by Forrest J in the Federal Court of Australia.

The central legal issue before the court was whether the respondent had engaged in misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth) during the negotiations that led to the execution of the deed of settlement and release. Specifically, the court had to determine if representations made by the respondent regarding the financial position of a third party were false or misleading, and if such conduct induced the applicant to enter into the settlement.

Forrest J considered the evidence presented by both parties, including the terms of the deed and the communications that occurred during settlement negotiations. His Honour applied the principles established in cases concerning misleading and deceptive conduct, focusing on whether the representations made by the respondent were factually inaccurate or likely to mislead a reasonable person in the position of the applicant. The court found that the respondent had made representations concerning the financial capacity of the third party that were not supported by evidence and were likely to mislead the applicant into believing the third party was in a stronger financial position than it was. This conduct was found to be misleading and deceptive.

The court ordered that the deed of settlement and release be set aside.

Orders