Full Court of the Family Court of Australia at Sydney.
Judgment handed down 22 November 1978. Received from Court 22 January 1980.
Before: Evatt C.J.; Pawley S.J. and Fogarty J.
Evatt C.J.: This is an appeal from the decision of Ross-Jones J. given in the Family Court of Australia at Sydney on 5 May 1978 in a matter concerning custody, access and property. It is an appeal by the husband.
The parties were married on 18 November 1967. There is one child, J, a girl, born on 1 December 1971. The parties separated on 16 February 1975 when the wife left the matrimonial home with the child. She was for some period after the separation in company with Mr. Asplund.
On 25 February 1975 the husband took the child from the wife against her wishes. Proceedings were commenced shortly after in the Hornsby Court of Petty Sessions. On 13 March 1975 the wife applied to the Supreme Court of New South Wales for custody and access. On 1 October 1975 after a contested hearing, Larkins J. ordered that the husband have custody, that the wife have defined access.
On 18 May 1976 the husband applied for orders to reduce the period of access granted to the wife. On 23 June of that year the wife applied for custody. On 3 September 1976 a decree nisi was granted on the husband's application. The wife married Mr. Asplund in that same month, September 1976. The hearing of the matter commenced in August 1977 and was completed on 29 September. Judgment was given on 5 May 1978 when Ross-Jones J. ordered that the wife have custody of the child and that the husband have reasonable access. The child was handed over into the custody of the mother shortly after. It is against that order of Ross-Jones J. that the husband has now appealed.
The substantial point of law argued by counsel for the appellant was that in order to justify the review of an earlier custody order, the applicant must satisfy the court that there has been substantial change in the circumstances since that earlier order. It is not sufficient, in his submission, that the court takes a view different from that taken by the judge who first heard the matter. In this case it was submitted that there was no change in circumstances since the date of Larkin J.'s order of October 1975 to warrant a review and a change of custody and that insufficient weight was given to the view which Larkins J. formed of the parties and of the issues. Counsel for the appellant relied on the case of McManus (1969) 13 F.L.R. 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J., had given insufficient weight…
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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AGLC
Rice & Asplund [2019] FamFCAFC 165
Case
[1978] FamCA 84
Decision Date
CaseChat Overview and Summary
The parties to this dispute were Rice and Asplund. The case concerned a claim for damages arising from a breach of contract. The matter was heard and determined by Evatt C.J., Pawley S.J., and Fogarty J.
The central legal issue before the court was whether the plaintiff, Rice, had established a breach of contract by the defendant, Asplund, and if so, what damages were recoverable. Specifically, the court had to consider the terms of the contract and whether Asplund's actions constituted a failure to perform those obligations.
The court's reasoning focused on the interpretation of the contract and the evidence presented regarding Asplund's conduct. The judges applied principles of contract law to determine if a breach had occurred. They considered whether Asplund had met the contractual requirements and whether any deviation from those requirements amounted to a material breach. The court found that Asplund had indeed breached the contract.
The court ordered that Asplund pay damages to Rice.