Rudd & Riddick (No 2) - [2019] FamCA 691

FAMILY COURT OF AUSTRALIA

RUDD & RIDDICK (NO. 2)

[2019] FamCA 691

FAMILY LAW – Parenting and Property applications – Injunctive relief – Sole use & occupation – Orders proper.

Family Law Act 1975 (Cth) ss 114(2A)(a)-(c), 90SB, 90SK

Davis and Davis (1976) FLC 90-062

Mikele & Mikele (2008) FamCA 651

APPLICANT:

Ms Rudd

RESPONDENT:

Mr Riddick

FILE NUMBER:

MLC

5036

2018

DATE DELIVERED:

4 October 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

26 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schmidt

SOLICITOR FOR THE APPLICANT:

KCL Law

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

ORDERS MADE 26 SEPTEMBER 2019

The Respondent vacate the property situate at and known as G Street Suburb C in the State of Victoria (‘the G Street property’) by 12 noon on 3 October 2019.
Until further order, the Applicant have sole use and occupation of the G Street property, to the exclusion of the Respondent, save at such times and durations as agreed between the parties by text message as follows:-
(a)or the purpose of spending time with X, subject to X’s wishes; and
(b)for the purpose of conducting repairs, maintenance and/or decluttering the home and/or garden.
The Applicant pay to the Respondent the sum of $5,000 within 24 hours hereof the Respondent to use such funds to re-accommodate himself in accordance with these orders and for no other purpose. The reimbursement or otherwise of such sum to the Applicant be a matter for the trial judge’s determination.
Otherwise the application of the Applicant as to the sale of the G Street property (as contained in Application in a Case filed 18 September 2019) is adjourned for interim hearing on 25 November 2019 at 10.00am.
The parties file and serve any affidavit evidence on which they seek to rely by 12 November 2019 at 4.00pm.
Otherwise all extant applications are adjourned for final hearing on 16 March 2020 at 10.00am (with an estimated hearing time of 3 to 4 days).
The Applicant’s costs of this day are reserved.
Pursuant to r.19.50 of the Family Court Rules 2004 (Cth), the Court certifies that it was reasonable for the Applicant to engage Counsel.

AND THE COURT NOTES THAT:

(A)The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rudd & Riddick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject…

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 Rudd & Riddick (No 2)

Details

AGLC: Rudd & Riddick (No 2) [2019] FamCA 691
Case: [2019] FamCA 691
Decision Date: 4 October 2019

CaseChat Overview and Summary

In *Rudd & Riddick (No 2)*, Hartnett J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and its implications for the ongoing obligations 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 by failing to make a payment that the applicant contended was due and owing. This required the court to construe the relevant clauses of the deed to ascertain the precise nature of the respondent's obligations and the conditions precedent, if any, to those obligations arising.

Hartnett J's reasoning focused on the plain language of the deed and the objective intention of the parties at the time of its execution. The court examined the specific wording of the payment provisions, considering the context in which they appeared within the broader agreement. His Honour concluded that, on a proper construction of the deed, the respondent's obligation to make the payment had indeed arisen and that no condition precedent had prevented it from becoming due. Consequently, the court found that the respondent was in breach of the deed.

Orders