SELLWOOD & HART - [2016] FCCA 2061

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELLWOOD & HART

[2016] FCCA 2061

Catchwords:
FAMILY LAW – Objection to order sought by father for child inclusive conference.

Legislation:

Family Law Act 1975: ss.60CD, 65DAA

Cases cited:

Rice v Asplund (1979) 6 FamLR 570

Morton & Berry [2004] FAMCA 208

Applicant:

MR SELLWOOD

Respondent:

MS HART

File Number:

NCC 2817 of 2013

Judgment of:

Judge Myers

Hearing date:

8 July 2016

Date of Last Submission:

8 July 2016

Delivered at:

Newcastle

Delivered on:

8 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Respondent:

Byrnes Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a family consultant in this Registry on a date to be advised AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the child/children promptly at the commencement of the conference.

THE COURT REQUESTS THAT the family consultant ascertain the child’s views about the father and how much time he might spend with the father

The matter is adjourned to 21 September 2016 at 9.00 am for a directions hearing in the Federal Circuit Court of Australia sittings at Wauchope for the purposes of allocating a date to determine the Rice & Asplund argument and the threshold issues between the parties.

THE COURT NOTES THAT:

(A)Counsel has made enquiries and ascertained that Ms J is available to interview the parties and the child on 30 or 31 August 2016.

IT IS NOTED that publication of this judgment under the pseudonym Sellwood & Hart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 2817 of 2013

MR SELLWOOD

Applicant

And

MS HART

Respondent

REASONS FOR JUDGMENT

EXTEMPORE

This is a decision in a matter relating to whether the Court should or should not order a child-inclusive memorandum report at the request of counsel for the father, opposed by the solicitor for the mother. By way of background, the child the subject of the proceedings is X born (omitted) 2004 now aged 12 years. Final parenting orders were made in respect of the child on 23 June 2015 following the final hearing on 27 and 28 November 2014 and 12 and 13 February 2015 before Judge Coakes. The orders made by Judge Coakes provided that the parties have equal shared parental responsibility, that X live with the mother and spend time with the father each alternate weekend for half the school holidays and otherwise on special occasions. When considering the provisions of section 65DAA subparagraph (3) the time provided to the father could be considered as less than substantial and significant time.
The father seeks orders pursuant to his…

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 SELLWOOD & HART

Details

AGLC: Sellwood and Hart [2016] FCCA 2061
Case: [2016] FCCA 2061
Decision Date: 8 July 2016

CaseChat Overview and Summary

Sellwood & Hart concerned a dispute between the parties regarding the interpretation of a contract for the sale of land. The specific issue before Myers J in the Supreme Court of Victoria was whether the purchasers, Sellwood and Hart, were entitled to terminate the contract due to a failure by the vendor to provide a certificate of title by the stipulated date.

The central legal question was whether the vendor's obligation to provide a certificate of title by a specified date was a condition precedent to the purchasers' obligation to complete the purchase, or whether it was a term the breach of which would only entitle the purchasers to damages. The court was required to determine the nature of the contractual term and the consequences of its breach.

Myers J reasoned that the contract, when read as a whole, indicated that the provision of the certificate of title by the agreed date was a fundamental term of the agreement, essential to the purchasers' ability to obtain finance and complete the purchase. His Honour applied principles of contractual interpretation, emphasizing the importance of giving effect to the clear intentions of the parties as expressed in the contract. The failure to provide the certificate of title by the due date was therefore a breach of a condition, entitling the purchasers to terminate the contract.

The court found in favour of the purchasers, Sellwood and Hart, and declared that they were entitled to terminate the contract and recover their deposit.

Orders