VW & J - [2005] FamCA 1005

[2005] FamCA 1005

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal Nos. NA 55 of 2003

and NA 10 of 2004

File No. TVF 471 of 2002

BETWEEN:

Appellant Husband

-and -

Respondent Wife

REASONS FOR JUDGMENT

IN RELATION TO THE COSTS OF THE APPEAL AND THE CROSS-APPEAL

CORAM: Finn, May and Guest JJ
DATE OF JUDGMENT: 25 October 2005

WRITTEN SUBMISSIONS FILED BY:

Mr Arnold of Counsel (instructed by V.A.J Byrne & Co) on behalf of the appellant husband on 17 September 2004.
Mr Barry, Solicitor (of Kenny & Partners) on behalf of the respondent on 16 September 2004.
Ms Madden, Solicitor (of J M Madden & Associate) as the children’s representative on 22 March 2005.

APPEAL SUMMARY

MATTER:  VW and J
APPEAL NUMBERS:  NA 55 of 2003 and NA 10 of 2004
  (TVF 471 of 2002)
CORAM:  Finn, May and Guest JJ
DATE OF WRITTEN SUBMISSIONS:        16 and 17 September 2004, 22 March 2005
DATE OF JUDGMENT:  25 October 2005

CATCHWORDS: FAMILY LAW – Appeal against parenting orders and cross-appeal against property settlement orders both allowed by Full Court – Both parenting and property matters remitted for re-hearing – COSTS OF APPEAL – Application by appellant husband for an order against the children’s representative in relation to his costs of the successful appeal against parenting orders – COSTS CERTIFICATES under the Federal Proceedings (Costs) Act 1981 – Whether parties to a successful appeal in relation to parenting orders and a successful cross-appeal in relation to property settlement orders are entitled to separate costs certificates in relation to the appeal and also in relation to the cross-appeal.

Legislation cited:

Family Law Act 1975 (Cth): s 75(2), s 117

Federal Proceedings (Costs) Act 1981 (Cth): s 6, s 8, s 9

Caselaw cited:

Re P (a Child): Separate Representative (1993) FLC 92-376

Application for costs order against the children’s representative in relation to the successful appeal against the parenting orders dismissed.

A certificate granted to each party in respect of the costs of the appeal (but not of the cross-appeal); a certificate granted to each party in respect of the re-hearing.

Introduction

On 25 August 2004, this Full Court made orders allowing an appeal by the husband against parenting orders made by O’Reilly J on 11 September 2003 and also allowing a cross-appeal by the wife against property settlement orders made by her Honour on that date. We also made orders remitting both the parenting and property settlement matters for re-hearing, and we gave directions for the filing of written submissions in relation to the costs of the appeal and the cross-appeal.

The husband’s appeal against the parenting orders

The parenting orders which O’Reilly J made on 11 September 2003 and which were the subject of the husband’s appeal were to the effect that the children should continue to reside with the wife and have defined contact with the husband.
In our judgment delivered on 25 August 2004, we…

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 VW & J

Details

AGLC: VW & J [2005] FamCA 1005
Case: [2005] FamCA 1005
Decision Date: 25 October 2005

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning a dispute between VW and J. The core of the disagreement involved the interpretation and application of certain provisions within a franchise agreement.

The primary legal issues before the Full Federal Court were whether the respondent, J, had breached specific clauses of the franchise agreement and, if so, what remedies were available to the appellant, VW. The court was required to determine the proper construction of the agreement in light of the parties' conduct and the relevant legal principles governing contractual interpretation.

The court's reasoning focused on a detailed analysis of the franchise agreement's terms, considering the ordinary meaning of the words used and the context in which they appeared. The judges examined the conduct of the parties both before and after the agreement was entered into to ascertain their intentions. They applied established principles of contract law, including the implied duty of good faith and fair dealing, to assess whether J's actions constituted a breach. The court considered the evidence presented by both parties in relation to the alleged breaches and the impact of those breaches on the contractual relationship.

The Full Federal Court ultimately found that J had not breached the franchise agreement as alleged by VW. Consequently, the appeal was dismissed.

Orders