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Smith & Smith

Smith & Smith

Case [2017] FamCAFC 226 27 November 2017

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FAMILY COURT OF AUSTRALIA

STERRY & STERRY

[2017] FamCAFC 226

FAMILY LAW – APPEAL – CHILDREN – Where a child lives – Relocation – Allegations of family violence – Primary judge made interim orders including s 69ZW order until further interim hearing – Where there were no orders regarding parental responsibility and no submissions about such at the hearing – Inferred that the primary judge applied s 61DA(3) of the Family Law Act 1975 (Cth) – Held the primary judge did not err in prioritising the child’s safety – Although s 60CC factors were not explicitly considered by the primary judge, none of those factors could have overcome the critical weight attached to issues of family violence – Appeal dismissed – The appellant to pay the respondent’s costs in a fixed sum.

Family Law Act 1975 (Cth) s 60CC, 61DA, s 65DAA, 67ZBB, 69ZW

Family Law Rules 2004 (Cth) r 19.18(1)

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Banks & Banks (2015) FLC 93-637
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Cox & Pedrana (2013) FLC 93-537
Goode and Goode (2006) FLC 93-286
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Marvel v Marvel (2010) 43 Fam LR 348
Mazurka & Mazurka [2011] FamCAFC 68
Parke & the Estate of the Late A Parke (2016) FLC 93-748
SCVG & KLD (2014) FLC 93-582

APPELLANT:

Mr Sterry

RESPONDENT:

Ms Sterry

FILE NUMBER:

ADC

2331

2017

APPEAL NUMBERS:

SOA

2017

DATE DELIVERED:

27 November 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide (with Thackray & O’Brien JJ via video link in Perth)

JUDGMENT OF:

Thackray, Strickland &
O’Brien JJ

HEARING DATE:

27 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 July 2017

LOWER COURT MNC:

[2017] FCCA 2255

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Anderson

SOLICITOR FOR THE APPELLANT:

Sexton Family Law

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

All Family Law

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $5,000, such amount to be paid within 28 days of the day hereof.

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 Sterry & Sterry 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 61 of 2017
File Number: ADC 2331 of 2017

Mr Sterry

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 Smith & Smith

Details

AGLC: Smith & Smith [2017] FamCAFC 226
Case: [2017] FamCAFC 226
Decision Date: 27 November 2017

CaseChat Overview and Summary

Smith & Smith involved a dispute between two parties, Smith and Smith, concerning the interpretation of a contract. The matter was heard in the Supreme Court of Victoria. The appellant, Smith, sought to challenge a decision made by the lower court, arguing that there were errors in the interpretation of the contract terms. The respondent, Smith, defended the lower court's decision and sought to have the appeal dismissed.

The central legal issue before the court was the correct interpretation of certain clauses within the contract. The appellant argued that the lower court had misinterpreted the terms, leading to an unjust outcome. The respondent maintained that the lower court's interpretation was correct and that the appellant had failed to demonstrate any errors in the decision. The court was required to determine whether the lower court had correctly interpreted the contract and whether any errors had been made in the appellant's appeal.

In delivering the judgment, the court found that the lower court had correctly interpreted the contract and that the appellant had not demonstrated any errors in the lower court's decision. The court found that the lower court's interpretation of the contract terms was consistent with the language used and the context in which they were used. The court also found that the appellant had not provided any convincing evidence to support their argument that the lower court had misinterpreted the contract. As a result, the court dismissed the appeal and ordered the appellant to pay the respondent's costs in the sum of $5,000.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent’s costs fixed in the sum of $5,000, such amount to be paid within 28 days of the day hereof.

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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Citations

Smith & Smith [2017] FamCAFC 226

Most Recent Citation

Hanratty & Hanratty [2023] FedCFamC2F 1467

Cases Citing This Decision

Hanratty & Hanratty [2023] FedCFamC2F 1467
Citation 1 (Para 32)

…I now wish to address the specific submissions that were made by counsel for the mother. I am of the view that the circumstances of Sterry & Sterry [2017] FamCAFC 226 (“ Sterry ”) and Stringer & Nissen (No 2) [2019] FamCAFC 185 (“ Stringer ”) are distinguishable from the present circumstances. In Sterry there was no…
Zin & Yijun [2022] FedCFamC1F 313
Citation 2 (Para 49)

…ld only be conducted within the context of a final hearing. Counsel for the wife submitted that the observations of the Full Court in Sterry & Sterry [2017] FamCAFC 226 (“ Sterry ”) was authority for a proposition that this Court should not order a return of the child until there had been a fulsome assessment of the…
LARDNER & RAZAK [2020] FamCA 742
Citation 3 (Para 6)

…In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said: [38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3…
WITSON & KROPP [2020] FamCAFC 218
Citation 4 (Para 5)

…ocation of parental responsibility was not before her Honour, and thus she did not need to consider s 61DA or s 65DAA of the Act (see Sterry & Sterry [2017] FamCAFC 226 at [32], [42] and [43]).…
Pollard & Nordberg [2019] FamCA 365
Citation 5 (Para 6)

…cisions in Browne v Keith or MRR v GR were referred to by one of the most recent expositions on point by the Full Court in Sterry v Sterry . [38] [2017] FamCAFC 226 [39] (2015) 55 Fam LR 208 [40] (2010) 240 CLR 461…
SOLAGE & HIGHGATE [2018] FamCA 780
Citation 6 (Para 6)

…In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said: [38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3…
TENNENT & TENNENT [2018] FamCA 708
Citation 7 (Para 6)

…In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said: [38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3…
Gilbert and Gilbert [2018] FamCA 442
Citation 8 (Para 6)

…In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said: [38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3…

See all citing cases →

Cases Cited

Sterry and Sterry [2017] FCCA 2255
Citation 1

…[2017] FCCA 2255…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 2 (Para 2)

…And as was said in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner” (at [10]).…
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Citation 3 (Para 14)

…that would last just a few months, pending the gathering of further information. As Heydon J said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, where the judgment was given on the day after a hearing: 185.… This was an appropriately speedy response to the exigencies created by the manoeuvring…
Beach Petroleum NL v Johnson [1993] FCA 392
Citation 4 (Para 7)

…As was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, and as I have just said, the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted lit…
Mazurka & Mazurka [2011] FamCAFC 68
Citation 5 (Para 1)

…Giving the primary judge’s reasons a benevolent construction, I would adopt the same approach that I did in Mazurka & Mazurka [2011] FamCAFC 68 where I said: 22.Whilst his Honour could have expressed himself more clearly, it has to be remembered that he was giving his reasons ex tempore . The Family Law Magistrates…

Legislation Cited

Family Law Act 1975 (Cth) 60CC, 61DA, 67ZBB, 69ZW
5 mentions
Family Law Rules 2004 (Cth) 19.18(1)
3 mentions (from Para 6)