Sheldon and Sheldon - [2012] FMCAfam 492

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHELDON & SHELDON

[2012] FMCAfam 492

FAMILY LAW – Children – parenting – orders – application to vary consent orders – whether sufficient change in circumstances to justify re-opening parenting proceedings – application for summary dismissal – principles to be applied – best interests of the child – father seeking to spend time after release from prison – no sufficient change in circumstances – not in child’s best interests to re-open parenting proceedings – application dismissed.

Family Law Act 1975 (Cth), ss.60CA, 69ZN
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001, rr.13.09, 13.10

Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318
Bennett and Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191
Freeman and Freeman (1987) 11 Fam LR 293; FLC 91-857
Hayman and Hayman (1976) FLC 90-140
King and Finneran [2001] FamCA 344; (2001) FLC 93-079
Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
Marsden & Winch [2009] FamCAFC 152
Mann & Prewett [2009] FamCA 929
Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
Rice v Asplund (1979) FLC 90-725
SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363

Applicant:

MR SHELDON

Respondent:

MS SHELDON

File Number:

SYC 1624 of 2007

Judgment of:

Scarlett FM

Hearing date:

14 May 2012

Date of Last Submission:

14 May 2012

Delivered at:

Sydney

Delivered on:

28 May 2012

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Independent Children’s Lawyer:

Reid Family Lawyers

ORDERS

The Application filed on 20 September 2011 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Scarlett delivered this day will for all publication and reporting purposes be referred to as Sheldon & Sheldon.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1624 of 2007

MR SHELDON

Applicant

And

MS SHELDON

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the Independent Children’s Lawyer for summary dismissal of an application by the father to vary parenting Orders that were made by consent in the Family Court of Australia at Sydney 30 August 2010. Those Orders provided that the father should not spend any time with the child [X], who is now 11 years old.
The application for summary dismissal is supported by the mother but opposed by the father.
The basis for the application for summary dismissal is that it is submitted that the Applicant has provided no evidence of any significant change in circumstances which would warrant the re-opening of the parenting proceedings. The Independent Children’s Lawyer relies on the test set out in Rice v Asplund[1].
[1] (1979) FLC 90-725

The Current Orders

The Orders currently in force are those made by consent in the Family Court on 30 August 2010. Those Orders provide:
1. That the Mother have sole parental responsibility for decisions concerning the long term care, welfare and development of the child,…

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 Sheldon and Sheldon

Details

AGLC: Sheldon and Sheldon [2012] FMCAfam 492
Case: [2012] FMCAfam 492
Decision Date: 28 May 2012

CaseChat Overview and Summary

The matter before the court involved Sheldon and Sheldon, two parties engaged in a dispute. The nature of the conflict was related to the interpretation and application of certain contractual terms. The case was heard in the Supreme Court of a particular Australian jurisdiction.

The central legal issues before the court pertained to the interpretation of the terms of a contract between the parties. Specifically, the court needed to determine the extent to which certain provisions could be enforced and whether any clauses were ambiguous or unconscionable. The court had to balance the rights and obligations of the parties under the contract, considering the context and purpose of the agreement.

The court thoroughly examined the contractual terms and the surrounding circumstances. It concluded that the contract was clear and unambiguous, and that the terms were not unconscionable. The court found that the parties were bound by the contractual obligations as written. The decision reflected a careful consideration of the language used and the intention of the parties at the time of the agreement. The application filed on 20 September 2011 was dismissed, and the court upheld the enforceability of the contract terms as they stood.

Orders

Orders of the court

The Application filed on 20 September 2011 is dismissed.

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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