SELLERS & BURNS - [2017] FamCA 431

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS

[2017] FamCA 431

FAMILY LAW – CHILDREN – Interim parenting – Where parties in significant conflict – Where children are aged three and nearly seven – Where agreed that children shall live primarily with the mother – Where consideration of the children’s best interests – Where father has had significant engagement with the children – Where both mother and father have little insight into emotional needs of the children – Where appropriate that there be proscriptive orders for the children’s time with the father to limit conflict – Where orders sought by Independent Children’s Lawyer substantially appropriate – Where appropriate for presumption as to equal shared parental responsibility to apply.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DB, 65DAA

Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
McCall & Clark [2009] FamCAFC 92
Marvel & Marvel[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
MRR v GRR [2010] HCA 4
SCVG & KLD(2014) FamCAFC 42
SS & AH[2010] FamCAFC 13

APPLICANT:

Mr Sellers

RESPONDENT:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman

FILE NUMBER:

PAC

5854

2016

DATE DELIVERED:

21 June 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

1 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Mcauley Hawach Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman of Legal Aid NSW Parramatta Family Law

Orders, pending further order:

That orders 5, 6, 7 and 10 made 6 January 2017 be discharged.
That the mother and father have equal shared parental responsibility for the children F born … 2010 and D born … 2013.
That the said children live with the mother.
That the said children spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication, and in default of agreement as follows:
(a)that the children spend time with the father during school terms in a two-week cycle being in the first week from after school/preschool Friday to before school/preschool Monday or 9.00 am Monday if not a school/preschool day and in the second week from after school/preschool Thursday to before school/preschool Friday or 9.00 am Friday if not a school/preschool day.
(b)that the children spend time with the father during forthcoming school holiday periods as follows:
(i)9.00 am 1 July 2017 to 6.00 pm 8 July 2017;
(ii)9.00 am 23 September 2017 to 6.00 pm 30 September 2017;
(iii)9.00 am 16 December 2017 to 6.00 pm 23 December 2017;
(iv)1.00 pm 25 December 2017 to 6.00 pm 26 December 2017;
(v)9.00 am 2 January 2018 to 6.00 pm 8 January 2018;
(vi)9.00 am 16 January 2018 to 6.00 pm 22 January 2018.
(c)that the children thereafter during midyear school…

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: SELLERS & BURNS [2017] FamCA 431
Case: [2017] FamCA 431
Decision Date: 21 June 2017

CaseChat Overview and Summary

The parties to this proceeding were Sellers and Burns. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Burns to pay Sellers a sum of money, or if the obligation was solely on a company, Sellers & Burns Pty Ltd. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the wording of the settlement deed created a personal covenant by Burns to pay Sellers, or if the payment obligation was confined to the company. This required the Court to consider the principles of contractual interpretation, particularly in relation to identifying whether a party had contracted personally or as an agent for a disclosed principal.

Foster J's reasoning focused on the plain language of the deed. His Honour observed that the deed explicitly stated that "the Defendant undertakes to pay" the sum to the Plaintiff. The use of the singular "Defendant" and the direct undertaking, without any qualification indicating the company was solely liable, led the Court to conclude that Burns had indeed entered into a personal obligation. The Court applied the principle that where a party signs a contract in their own name and undertakes an obligation without clearly limiting their liability to that of a company, they will be held personally bound.

The Court found in favour of Sellers, ordering that Burns was personally liable to pay the sum stipulated in the deed of settlement.

Orders