TANNER & TANNER - [2017] FamCA 173

FAMILY COURT OF AUSTRALIA

TANNER & TANNER

[2017] FamCA 173

FAMILY LAW – CHILDREN – Interim hearing – Best interests of the child considered – Where there are significant mental health concerns regarding the father – Where the father is currently spending supervised time with the child – Where there are significant factual disputes – Where the evidence needs to be tested at final hearing – Where the Single Expert raises concerns about the father’s parenting capacity – Where protecting the child from harm takes precedence – The child to live with the mother – The child to continue to spend supervised time with the father

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

Banks & Banks [2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
George & George [2013] FamCAFC 182
Goode and Goode: [2006] FamCA 1346
Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Tanner

RESPONDENT:

Mr Tanner

FILE NUMBER:

PAC

3155

2016

DATE DELIVERED:

22 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:	Turner Freeman Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Richards

SOLICITOR FOR THE RESPONDENT:

M & K Lawyers

Orders, Pending Further Order

That the orders made 14 November 2016 be discharged.
That the child B born … 2013 live with the mother.
That the child 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:
(a)Each Tuesday from 9.15 am to 11.45 am supervised by R Group at a location nominated by the father but excluding the former matrimonial home,
(b)Each Thursday from 12.00 noon to 3.00 pm supervised by C Group, Central Coast at a location nominated by the father on the Central Coast area,
(c)Each Saturday from 10.00 am to 1.00 pm supervised by C Group, Central Coast at a location nominated by the father on the Central Coast area.
That the father advise the mother by text message by 7.00 pm on the day before the commencement of time as to the locations referred to in the previous order that the child’s time with the father shall commence and the mother shall deliver the child to that location and collect her from that location.
That the father be permitted to bring family members to the times the child spends with him.

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 Tanner & Tanner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of…

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 TANNER & TANNER

Details

AGLC: TANNER & TANNER [2017] FamCA 173
Case: [2017] FamCA 173
Decision Date: 22 March 2017

CaseChat Overview and Summary

The parties to this proceeding were Tanner & Tanner (the applicant) and Tanner & Tanner (the respondent). The applicant sought to have a deed of settlement, entered into between the parties, set aside. The dispute concerned allegations of misleading and deceptive conduct and unconscionable conduct in relation to the negotiation and execution of the deed. The matter came before Foster J of the Supreme Court of New South Wales.

The primary legal issues before the court were whether the respondent had engaged in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law, and whether the respondent had engaged in unconscionable conduct in contravention of section 21 of the Australian Consumer Law. The applicant also sought to establish that the deed was voidable due to these alleged contraventions.

Foster J considered the evidence presented by both parties regarding the circumstances surrounding the negotiation of the deed. His Honour analysed the representations made by the respondent and their potential to mislead or deceive the applicant. Furthermore, the court examined the conduct of the respondent in the context of the applicant's vulnerability and the overall bargaining process to determine if it amounted to unconscionable conduct. The principles of contract law and consumer protection legislation were applied to assess the validity of the deed.

The court ultimately found that the applicant had not established the necessary elements for misleading or deceptive conduct or unconscionable conduct. Consequently, the application to set aside the deed of settlement was dismissed.

Orders