TIEN & BIGGENS - [2017] FamCA 652

FAMILY COURT OF AUSTRALIA

TIEN & BIGGENS

[2017] FamCA 652

FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for father to pay contribution to the Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) r 12.13

De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936

APPLICANT:

Mr Tien

RESPONDENT:

Ms Biggens

INDEPENDENT CHILDREN’S LAWYER:

Mr Whelan

FILE NUMBER:

DGC

3282

2013

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 August 2017

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

RESPONDENT – SELF-REPRESENTED LITIGANT:

Ms Biggens

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Coady solicitor as agent for Mr Whelan of Mark Whelan Lawyer

Orders Made On 14 August 2017

The father’s Initiating Application filed 15 November 2013 be struck out and dismissed.
Leave is granted to the Respondent mother to withdraw her Response filed 6 May 2014 and that Response is accordingly dismissed.
These proceedings be removed from the active pending cases list.
By consent, the Respondent mother pay, by way of Legal Aid contribution, to Legal Aid NSW the sum of $1,650.00 within six (6) months of this date noting that notwithstanding this order the mother may make application to Legal Aid NSW to waive or reduce her contribution or make payments on some other arrangement by agreement.
The Applicant father pay, by way of Legal Aid contribution, to Legal Aid NSW the sum of $1,650.00 within three (3) months of this date.

THE COURT NOTES THAT

The Court is informed by the mother today that the father has had recent face-to-face contact with the child in her presence and has regular electronic communication with the child on at least a weekly basis.
It is the mother’s expectation that the father will again be present in Australian by late September 2017 and it is her proposal to seek to engage in family mediation in the best interest of the child.

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 Tien & Biggens 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DGC 3282 of 2013

Mr Tien

Applicant

And

Ms Biggens

Respondent

REASONS FOR JUDGMENT

On 14 August 2017 the primary parenting proceedings between Mr Tien (“the father”) and Ms Biggens (“the mother”) were resolved as discussed below. Subsequently the Independent Children’s Lawyer…

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 TIEN & BIGGENS

Details

AGLC: TIEN & BIGGENS [2017] FamCA 652
Case: [2017] FamCA 652
Decision Date: 25 August 2017

CaseChat Overview and Summary

The parties to this proceeding were Tien and Biggans. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically regarding the date by which settlement was to occur. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the court was whether the vendor, Tien, had validly terminated the contract for sale due to the purchaser, Biggans, failing to settle on the date stipulated in the contract. This required the court to determine the precise meaning and effect of the settlement clause, particularly whether it created a condition precedent to settlement or merely a date for performance.

Foster J reasoned that the contract's language, when read as a whole, indicated that time was of the essence for settlement. The clause specified a particular date for settlement and did not contain any provisions for extension or waiver. His Honour applied the principle that where a contract clearly makes time of the essence, a failure to settle on the stipulated date without a valid excuse or agreement for an extension constitutes a breach of contract, entitling the innocent party to terminate.

Consequently, Foster J found that Tien had validly terminated the contract and ordered that the proceedings be dismissed.

Orders