Remzi & Anor & Land - [2020] FamCA 913

FAMILY COURT OF AUSTRALIA

REMZI AND ANOR & LAND AND ANOR

[2020] FamCA 913

FAMILY LAW – CHILDREN – Undefended hearing – best interests – where appropriate that the matter proceed on an undefended basis – where the applicants are non-parents – where consideration of applicable principles – where orders made that the maternal grandparents have sole parental responsibility for the child – where orders made for the child to live with the maternal grandparents and spend time with the father and second respondent paternal grandmother as agreed between them and the maternal grandparents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53; (2013) FLC 93-539
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT:

Mr Remzi

SECOND APPLICANT:

Ms Remzi

FIRST RESPONDENT:

Mr Land

SECOND RESPONDENT:

Ms Quinton

INDEPENDENT CHILDREN’S LAWYER:

Mr Jenkins

FILE NUMBER:

PAC

4086

2019

DATE DELIVERED:

29 October 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 September 2020

REPRESENTATION

SOLICIOR FOR THE FIRST AND SECOND APPLICANTS:

Thornton Storgato Law Pty Ltd

FIRST RESPONDENT – SELF‑REPRESENTED LITIGANT:

No appearance

SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Russell Kennedy Aitken Lawyers

Orders Made On 30 September 2020

The Applicants, Mr Remzi and Ms Remzi, have sole parental responsibility for the child X born in 2013.
The said child live with the said Applicants.
The said child spend time with the Respondent father Mr Land as agreed between the Applicants and the Respondent.
That all time the child spends with either or both of the Respondents shall be supervised by the Applicants provided:
(a)during the time the child spends with the Respondents the child will always remain visible to the Applicants; and
(b)such time shall occur within the Sydney metropolitan area unless otherwise agreed by the Applicants and First and/or Second Respondents in writing.
That either or both Respondent/s may propose a professional supervisory service (“supervisory service”) to supervise the whole of the time the child spends with the First and/or Second Respondent instead of the Applicants, contingent upon the Respondent who proposes use of the supervisory service:
(a)meeting all costs of the supervisory service and providing the same with a copy of this order upon retention of the supervisory service; and
(b)providing the Applicants with contact details for the supervisory service no less than 72 hours prior to the time the supervisory service is proposed to supervise the time; and
(c)such time shall occur within the Sydney metropolitan area unless…

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 Remzi & Anor & Land

Details

AGLC: Remzi & Anor & Land [2020] FamCA 913
Case: [2020] FamCA 913
Decision Date: 29 October 2020

CaseChat Overview and Summary

The case of *Remzi & Anor v Land* concerned a dispute between the applicants, Mr. and Mrs. Remzi, and the respondent, Land, regarding a contract for the sale of land. The applicants sought to terminate the contract and recover their deposit, alleging that the respondent had breached a condition precedent. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the court was whether the respondent had breached a condition precedent to the contract, specifically a requirement to obtain a particular planning approval within a stipulated timeframe. The applicants contended that the respondent's failure to secure this approval rendered the contract voidable at their election, entitling them to terminate and reclaim their deposit. The respondent argued that they had taken all reasonable steps to obtain the approval and that the condition had either been satisfied or waived.

Foster J considered the terms of the contract and the evidence presented regarding the respondent's efforts to obtain the planning approval. His Honour applied the principles of contract law concerning conditions precedent, noting that such conditions must be strictly performed unless waived. The court examined the nature of the condition and whether the respondent's actions constituted a sufficient attempt to fulfil it, or if their conduct amounted to a repudiation of the contract. The interpretation of the contractual clause regarding the timeframe for obtaining the approval was also a key aspect of the court's reasoning.

Ultimately, Foster J found that the respondent had not breached the condition precedent in a manner that entitled the applicants to terminate the contract. The court concluded that the respondent had made reasonable efforts to comply with the condition, and therefore, the applicants were not entitled to terminate the agreement or recover their deposit. The application was dismissed.

Orders