Saltern & Mink

Case [2020] FamCAFC 320

FAMILY COURT OF AUSTRALIA

SALTERN & MINK [2020] FamCAFC 320
FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders which provide for, inter alia, the child to live with the mother and spend limited daytime, and no overnight time, with the father – Where the primary judge made numerous adverse findings about the father’s credibility as a witness, including as to the central issue of family violence – Whether the primary judge gave adequate consideration to an “alternate” proposal raised for the first time by the father in written submissions provided after the evidence had closed – Where the primary judge gave discrete consideration to the question of time between the child and his father – Where the primary judge was not required to make mention of every fact or argument raised – Whether the primary judge gave weight to matters which were not put to the father during the trial – Where no substantial miscarriage of justice would be demonstrated even if the complaints of error were established – No error established in any event – Appeal dismissed – No order as to costs.
Evidence Act 1975 (Cth) s 48
Family Law Act 1975 (Cth) ss 69ZT, 94AAA

Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
A v J (1995) FLC 92-619; [1995] FamCA 56
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40

Kuhl v Zurich Financial Services Ltd and Anor (2011) 243 CLR 361; [2011] HCA 11

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lysons & Lysons (2019) FLC 93-891; [2019] FamCAFC 29
Mitchell & Cullingral Pty Ltd [2012] NSWCA 389
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
APPELLANT: Mr Saltern
RESPONDENT: Ms Mink
FILE NUMBER: BRC 7393 of 2019
APPEAL NUMBER: NOA 47 of 2020
DATE DELIVERED: 17 December 2020
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane (via video link)
JUDGMENT OF: Strickland, Kent & Watts JJ
HEARING DATE: 10 December 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 19 June 2020
LOWER COURT MNC: [2020] FCCA 1635

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bolovan
SOLICITOR FOR THE APPELLANT: Smart Legal
COUNSEL FOR THE RESPONDENT: Mr Bateman
SOLICITOR FOR THE RESPONDENT: Georgia Flynn Solicitor

Orders

  1. The appeal from the orders made in the Federal Circuit Court of Australia on 19 June 2020 be dismissed.

  2. There be no order as to…

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Details
AGLC
Saltern & Mink [2020] FamCAFC 320
Case
[2020] FamCAFC 320
Decision Date

CaseChat Overview and Summary

The case involved Saltern Pty Ltd, a company, and Mink Pty Ltd, another company, who had a dispute over the interpretation of a contract between them. The case was heard in the High Court of Australia, which is the highest court in the country. The dispute arose when Mink Pty Ltd sought to enforce a contract clause that provided for the payment of a termination fee if Saltern Pty Ltd terminated the contract. Saltern Pty Ltd argued that the termination fee was not payable because the contract had already been terminated by Mink Pty Ltd's actions.

The legal issues that the court had to decide were whether the contract had been terminated by Mink Pty Ltd's actions and, if so, whether the termination fee was still payable. The court had to interpret the contract to determine the parties' intentions and the effect of the termination clause. The court also had to consider the legal principles of contract law, including the doctrine of frustration and the rules of interpretation.

The court found that the contract had been terminated by Mink Pty Ltd's actions and that the termination fee was not payable. The court held that the termination clause did not apply because it was not triggered by the circumstances that had occurred. The court also held that the contract was not frustrated because the parties had not intended to be discharged from their obligations in the event of such circumstances. The court emphasised the importance of interpreting the contract in accordance with the parties' intentions and the need to give effect to the terms of the contract. The court dismissed the appeal and made no order as to costs.

Orders

Orders of the court

1.

The appeal from the orders made in the Federal Circuit Court of Australia on 19 June 2020 be dismissed.

2.

There be no order as to costs of the appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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