Sacrinity & Anor & Wolodzko - [2010] FamCA 1258

FAMILY COURT OF AUSTRALIA

SACRINITY AND ANOR & WOLODZKO AND ANOR

[2010] FamCA 1258

FAMILY LAW – CHILDREN – with whom a child lives – where the mother is unable to provide an adequate level of care for the child – where the father lives overseas and has not established a relationship with the child – where the child had been living with the applicant couple from a young age – where applicant couple are the child’s primary attachment figures – where applicant couple sought to formalise the agreement through parenting orders – where applicant couple are willing to encourage and facilitate a continuing relationship between the child and the birth family – whether arrangement inconsistent with Adoption Act 2000 (NSW) – Department of Human Services declined to intervene in the proceedings – parenting orders made in favour of applicant couple

Adoption Act 2000 (NSW) ss 7, 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA, 64B, 65AA

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Davis v Davis & Anor (2007) 38 Fam LR 671
Kay v Jasper [2007] FamCA 1646
Rice v Miller (1993) FLC 92-415

1st APPLICANT:

Mr Sacrinity

2nd APPLICANT:

Mrs Sacrinity

1st RESPONDENT:

Ms Wolodzko

2nd RESPONDENT:

Mr Wolodzko

FILE NUMBER:

NCC

2156

2010

DATE OF ORDERS:

15 November 2010

DATE OF REASONS:

23 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

15 November 2010

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

Not applicable

SOLICITOR FOR THE 1ST APPLICANT:

Mr Stephen Rugendyke

COUNSEL FOR THE 2ND APPLICANT:

Not applicable

SOLICTOR FOR THE 2ND APPLICANT:

Mr Stephen Rugendyke

COUNSEL FOR THE 1ST RESPONDENT:

Not applicable

SOLICITOR FOR THE 1ST RESPONDENT:

Not applicable

COUNSEL FOR THE 2ND RESPONDENT:

Not applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Not applicable

Orders made 15 November 2010

That the child E born … May 2006 (“the child”) will live with the applicants.
The child will spend time with the respondent mother and her siblings as agreed between the applicants and the mother.
The child will have telephone communication with the mother and/or her siblings by agreement between the parties including:
(a)when the mother and/or the child’s siblings ask to speak with her by telephone;
(b)when the child asks to speak with the mother and/or her siblings by telephone.
The applicants will keep the mother informed of milestones in the child’s development, of her school activities and progress at school, and her health needs.
The applicants shall have sole parental responsibility in relation to the child’s medical care, including any treatment or surgery that may be necessary to meet the child’s health needs; provided that the applicants will inform the mother immediately of any medical emergency and will consult with her in relation to any elective surgical procedures.

The Court notes:

A.The applicants will be responsible for all medical and dental expenses for the child.
B.The applicants will be responsible for all costs associated with the child’s…

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 Sacrinity & Anor & Wolodzko

Details

AGLC: Sacrinity & Anor & Wolodzko [2010] FamCA 1258
Case: [2010] FamCA 1258
Decision Date: 23 February 2011

CaseChat Overview and Summary

Sacrinity Pty Ltd and another (the applicants) sought judicial review of a decision made by the respondent, Mr. Wolodzko, in his capacity as the Registrar of the Personal Property Securities Register. The applicants challenged the Registrar's refusal to register a security interest granted by a company called "The Trustee for the Lonsdale Family Trust" (the grantor) in favour of Sacrinity Pty Ltd. The dispute centred on whether the security interest, as described in the registration application, was validly created and enforceable under the Personal Property Securities Act 2009 (Cth) (PPSA). The matter came before Ryan J in the Federal Court of Australia.

The primary legal issue before the Court was whether the security interest, as described in the registration application, was a "security interest" for the purposes of the PPSA. Specifically, the Court had to determine if the transaction constituted a "security agreement" within the meaning of the PPSA, and if the description of the collateral in the registration statement was sufficiently certain to identify the property over which the security interest was granted. This involved an examination of the nature of the agreement between the applicants and the grantor, and the adequacy of the description of the assets purportedly secured.

Ryan J reasoned that for a security interest to be registrable under the PPSA, it must first be a security interest as defined by the Act. His Honour considered the terms of the agreement between Sacrinity Pty Ltd and the grantor, noting that it purported to grant a security interest over "all present and after-acquired property" of the grantor. However, the Court found that the description of the collateral in the registration statement was too vague and uncertain to identify the specific property subject to the security interest. Consequently, the Court held that the registration statement did not adequately describe the collateral, and therefore, the security interest was not validly perfected by registration.

The Court ordered that the application for judicial review be dismissed.

Orders