S & S

Case [2005] FamCA 1304 15 November 2005

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[2005] FamCA 1304

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA67 of 2004

File No. BRM5558 of 2001

IN THE MATTER OF: S

Appellant Husband

AND: S

Respondent Wife

CORAM: FINN, COLEMAN, WARNICK JJ

DATE OF HEARING: 24 MAY 2005

Further submissions filed 12 July 2005

DATE OF JUDGMENT: 15 NOVEMBER 2005

JUDGMENT OF THE FULL COURT

Appearances: Mr Murphy of Senior Counsel with Mr Bourke of Counsel, instructed by Rosen Lawyers appeared on behalf of the appellant husband

Mr Waterman of Counsel, instructed by Neumann & Turnour, appeared on behalf of the respondent wife

Name of Appeal	S AND S
Appeal Number	NA67 OF 2005
Date of Appeal Hearing	24 MAY 2005
Date of Judgment	15 NOVEMBER 2005
Coram	FINN, COLEMAN, WARNICK, JJ

Catchwords: APPEALS – FROM DECISION OF FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – SUPERANNUATION – VALUATION – CHANGE OF LAW – The parties were married for 16 years – Orders for property settlement were made by the Federal Magistrates Court – Contribution finding of 55/45 in favour of the husband – Federal Magistrate valued the husband’s superannuation at $354,769 at trial – Judgment was reserved for 13 months – The law relating to the superannuation scheme of which the husband was a member changed between trial and judgment – the husband argued that the Federal Magistrate failed to consider the effect of the changes on a splitting order as ultimately made – No attempt was made by the husband to re-open the hearing of the matter before the trial Magistrate to bring any further evidence – The mere fact of change was not shown to have any practical consequence on the anticipated financial position of the parties from which it appeared to be at trial – In the circumstances of the matter it was not shown that the Federal Magistrate fell into appellable error.
OPERATIVE DATE – While, where the question of operative date is open, there are sound reasons for matching an operative date to the date of valuation of a superannuation interest, in the circumstances of this case, in which both parties sought a particular operative date, the Federal Magistrate was not in error in prescribing the operative date to be four days after the date of the orders determining the property settlement application.
CONTRIBUTIONS – DOMESTIC VIOLENCE – The Federal Magistrate made adjustment contributions of 5% in the wife’s favour because of domestic violence – The husband argued that the Federal Magistrate could not have made such a finding on the evidence – The term ‘course of conduct’ is a broad one – Conduct does not necessarily have to be frequent to constitute a course of conduct, though a degree of repetition is obviously required – The wife’s evidence established periodic behaviour and its consequences throughout the period of cohabitation.

C and B and DFRDBA (20005) 33 FamLR 494

C and C (2005) FLC 93-220

Gronow and Gronow (1979) 144 CLR 513

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: S & S [2005] FamCA 1304
Case: [2005] FamCA 1304
Decision Date: 15 NOVEMBER 2005

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning a dispute between S and S. The core of the disagreement related to the interpretation and application of certain provisions within a franchise agreement.

The primary legal issues before the Full Court were whether the respondent, S, had breached the franchise agreement by failing to meet specific performance standards and whether the appellant, S, was entitled to terminate the agreement on that basis. The Court was also required to consider the proper construction of clauses relating to performance benchmarks and the consequences of failing to achieve them.

The Court analysed the relevant clauses of the franchise agreement, paying close attention to the language used and the commercial context in which the agreement was made. It applied principles of contractual interpretation, considering the objective intentions of the parties as evidenced by the agreement itself. The Court found that the performance standards were not met, but that the appellant had not properly exercised its right to terminate the agreement due to procedural deficiencies in its notice of termination. The Court therefore held that the termination was invalid.

Orders