SANDISON & THORNHILL - [2019] FamCA 85

FAMILY COURT OF AUSTRALIA

SANDISON & THORNHILL

[2019] FamCA 85

CHILDREN – Parental responsibility – Where the parents have equal shared parental responsibility for their child – Where the parents are unable to agree about which school their child will attend – Where one of the child’s half siblings attends the school proposed by the mother – Where the mother is primarily responsible for delivering and collecting the child from school – Where it is not practical for the mother to travel to the school proposed by the father – Where if the mother was required to travel to the father’s proposed school it would likely place great strain upon her and impact her capacity to parent the child – Where an order is made for the child to attend the school proposed by the mother.

Family Law Act 1975 (Cth) ss 60CA, 60CC

APPLICANT:

Mr Sandison

RESPONDENT:

Ms Thornhill

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

1503

2016

DATE DELIVERED:

25 February 2019

ORDERS MADE:

29 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

29 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Lander & Rogers (Sydney)

COUNSEL FOR THE RESPONDENT:

Ms Carty

SOLICITOR FOR THE RESPONDENT:

Lindeman Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tin
Legal Aid NSW

Orders made 29 January 2019

That the Application in a Case filed on 18 December 2018 is dismissed.
That the mother shall enrol X born … 2013 (“the child”) in B Primary School in Suburb C.
That the father be restrained from withdrawing the child from B Primary School.
I reserve providing reasons for judgment.
That the mother’s application for costs be dismissed.
BY CONSENT paragraph 2 of the orders made on 30 April 2018 be varied at paragraph 2.1 to replace “D School” by “B Primary School, Suburb C”.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Sandison & Thornhill 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 to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1503 of 2016

Mr Sandison

Applicant

And

Ms…

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 SANDISON & THORNHILL

Details

AGLC: SANDISON & THORNHILL [2019] FamCA 85
Case: [2019] FamCA 85
Decision Date: 25 February 2019

CaseChat Overview and Summary

Sandison & Thornhill concerned a dispute between the parties regarding the interpretation of a clause within a deed of settlement. The matter came before Johnston J in the Supreme Court of Western Australia.

The central legal issue before the court was whether the respondent, Thornhill, was entitled to recover from the appellant, Sandison, the sum of $10,000 pursuant to clause 3(b) of the deed of settlement. This clause stipulated that if the respondent was required to pay a certain amount to a third party, the appellant would indemnify the respondent for that amount. The dispute arose because the respondent had paid $10,000 to a third party, but the appellant argued that this payment did not fall within the scope of the indemnity.

Johnston J's reasoning focused on the plain meaning of the words used in clause 3(b) of the deed. His Honour considered the context of the settlement agreement and the intention of the parties as evidenced by the language employed. The court determined that the payment made by the respondent to the third party was indeed an amount for which the appellant was liable to indemnify the respondent under the terms of the deed. The legal principle applied was the ordinary rules of contractual interpretation, giving paramount importance to the literal meaning of the words in the absence of ambiguity.

The court ordered that the appellant pay the respondent the sum of $10,000, together with interest and costs.

Orders