RICE & RICE - [2019] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICE & RICE

[2019] FCCA 117

Catchwords:
FAMILY LAW – Parenting and Property – allegations of family violence – financial non-disclosure.

Legislation:

Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65AA, 60CG, 74, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Goode & Goode (2007) 36 Fam LR 422

In the Marriage of Briese (1985) 10 Fam LR 642

Livesey & Jekins [1985] 1 All ER 106

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR [2010] HCA 4

Oriolo v Oriolo (1985) 10 Fam LR 665

Russell & Russell (1999) FLC92-877

Salah & Salah [2016] FamCAFC 100

Scott & Danton [2014] FamCAFC 203

Slater & Light [2011] FamCAFC 1

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Weir & Weir (1993) FLC 92-338

Applicant:

MS RICE

Respondent:

MR RICE

File Number:

PAC 6086 of 2014

Judgment of:

Judge Obradovic

Hearing dates:

31 July 2017, 1 – 2 August 2017,

8 November 2017

Date of Last Submission:

8 January 2018

Delivered at:

Parramatta

Delivered on:

31 January 2019

REPRESENTATION

Counsel for the Applicant:

Ms Shearman

Solicitors for the Applicant:

Hogg & Associates Lawyers

Counsel for the Respondent:

Mr O'Brien

Solicitors for the Respondent:	Aitken Lawyers
Counsel for the Independent Children's Lawyer:	Ms Conte-Mills
Solicitors for the Independent Children's Lawyer:	Dignan & Hanrahan Solicitors and Attorneys

PARENTING

All previous parenting orders in relation to the children [X] born … 2002 and [Y] born … 2006 are discharged.
The Applicant shall have sole parental responsibility for the children, provided that when exercising this responsibility she has notified the Respondent in writing of any decision she intends to make.
The children [X] and [Y] shall live with the Applicant.
The child [X] shall spend time with the Respondent in accordance with his own wishes.
The child [Y] shall spend time with the Respondent as follows:
(a)Each alternate weekend from after school Friday (or 3pm) until before school Monday (or 9am) during school terms, commencing on 1 February 2019;
(b)Each Wednesday from after school (or 3pm) until 8pm during school terms;
(c)Commencing at the end of Term 1 2019, for half of each school holiday period as follows:
(i)For the second half in even numbered years, from 9am on the middle Sunday until before school on the first day of student attendance for the term;
(ii)For the first half in odd numbered years, from after school on the final day of student attendance for the term until 9am on the middle Sunday;
(d)On Father’s Day from 9am until 5pm if not otherwise already in the Respondent’s care;
(e)During Eid celebrations each year:
(i)On the first Sunday of the first Eid celebration of the year from 9am until 8pm; and
(ii)On the first Saturday of the second Eid celebration of the year from 9am until 8pm.
(f)For Nawrooz:
(i)In even numbered years commencing 2020, on the first Sunday after 21 March, from…

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: Rice and Rice [2019] FCCA 117
Case: [2019] FCCA 117
Decision Date: 31 January 2019

CaseChat Overview and Summary

In *Rice & Rice*, the Supreme Court of New South Wales was asked to determine whether a party had breached their fiduciary duties to another. The dispute arose from a business relationship where one party alleged the other had acted in a manner inconsistent with their obligations of loyalty and good faith.

The central legal issue before the Court was the nature and scope of fiduciary duties in the context of a commercial partnership. Specifically, the Court had to consider whether the actions of the respondent constituted a breach of the duty to avoid conflicts of interest and the duty to act in the best interests of the partnership.

Obradovic J found that the respondent had indeed breached their fiduciary duties. The Court applied established principles of equity, emphasizing that individuals in a fiduciary relationship are held to a high standard of conduct. The reasoning focused on the respondent's failure to disclose material information and their pursuit of personal gain at the expense of the partnership's interests, which demonstrably created a conflict of interest and undermined the trust inherent in such relationships. The Court ordered that the respondent account for profits made as a result of the breach.

Orders