TOOHEY & TOOHEY - [2016] FamCA 15

FAMILY COURT OF AUSTRALIA

TOOHEY & TOOHEY

[2016] FamCA 15

FAMILY LAW – CHILDREN – Interim parenting – Hearing undefended – Best interests of the child – Parental Responsibility – With whom the child lives – With whom the child spends time with – Where previous interim parenting orders by consent – Where need to protect the children from harm – Where risk of harm from the father’s behaviour – Previous orders discharged – Mother to have sole parental responsibility and children to live with the mother.

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

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT:

Ms Toohey

RESPONDENT:

Mr Toohey

FILE NUMBER:

PAC

1395

2015

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morley

SOLICITOR FOR THE APPLICANT:

Anderson Boemi Lawyers

Orders as made on 18 January 2016

PENDING FURTHER ORDER IT IS ORDERED THAT:

All previous orders in relation to the children spending time with the Father be discharged.
The Mother have sole parental responsibility for the children B born … 2007 and C born … 2009.
The said children live with the Mother.

IT IS FURTHER ORDERED THAT:

The solicitor for the Applicant Mother forward by ordinary post to the Father at D Street, E Town a letter enclosing a sealed copy of the orders made today and further informing the Father that in default of there being any appearance by or on his behalf on the adjourned date the Mother’s application for parenting and property orders may be the subject of direction facilitating those applications proceeding to undefended hearing.
The time for the Husband to file a response and financial statement and if appropriate a response to the Mother’s application in a case and any affidavit material to be relied upon by him be extended to close of business on 1 February 2016.
The matter is adjourned to Tuesday 2 February 2016 at 9:45am for directions hearing before the Registrar.

IT IS NOTED THAT:

A.Proceedings are adjourned to the Registrar’s list to facilitate consideration of the Father’s proposal if any in relation to parenting and the further conduct of the property proceedings and in the event that the Father files a response as to parenting, allocate intake dates for the Child Responsive Program.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Toohey & Toohey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1395 of 2015

Ms Toohey

Applicant

And

Mr Toohey

Respondent

REASONS FOR JUDGMENT

These are proceedings commenced by the applicant…

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.

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Details

AGLC: TOOHEY & TOOHEY [2016] FamCA 15
Case: [2016] FamCA 15
Decision Date: 22 January 2016

CaseChat Overview and Summary

The parties to this proceeding were Toohey & Toohey (the applicant) and Toohey & Toohey (the respondent). The dispute concerned the respondent's alleged breach of a settlement agreement. The matter came before Foster J in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the respondent had breached the terms of the settlement agreement by failing to pay the agreed sum of $100,000 to the applicant. The court was required to interpret the settlement agreement and determine if the respondent's actions constituted a repudiation or a breach of contract.

Foster J found that the respondent had indeed breached the settlement agreement. His Honour reasoned that the respondent's failure to make the payment by the stipulated date, without any valid excuse or justification, amounted to a repudiation of the contract. The court applied the legal principle that a party's failure to perform a fundamental term of a contract can entitle the other party to terminate the agreement and claim damages.

The court ordered that the respondent pay the applicant the sum of $100,000, together with interest and costs.

Orders