WELLER & WELLER - [2017] FCCA 1790

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLER & WELLER

[2017] FCCA 1790

Catchwords:
FAMILY LAW – Interim parenting – children aged 14 and 11 resistant to spending time with father – best interest considerations – orders made for children to spend time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CD, 60CG, 61C, 61DA, 65DAA

Cases cited:

Allen v Allen (1984) 9 FamLR 440
Bondelmonte v Bondelmonte & Anor [2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
In the marriage of Cartlege (1977) 3 FamLR 11, 339; FLC 90-254
In the marriage of Wotherspoon & Cooper (1981) 7 FamLR 71; FLC 91-029
Keats & Keats [2016] FamCAFC 156
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
R v R [2000] FamCA 43
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MR WELLER

Respondent:

MS WELLER

File Number:

SYC 1197 of 2016

Judgment of:

Judge Obradovic

Hearing date:

6 July 2017

Date of Last Submission:

6 July 2017

Delivered at:

Parramatta

Delivered on:

4 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Mitchell

Solicitors for the Applicant:

Johnsons Solicitors

Counsel for the Respondent:

Mr Duncombe

Solicitors for the Respondent:

Dignan & Hanrahan

Counsel for the Independent Children's Lawyer:

Ms Norris

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

PENDING FURTHER ORDERS

That the parents have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006.
That the children live with the mother.
That the children spend time with the father commencing on the first Wednesday after the making of these orders and each alternate Wednesday thereafter, from after school to 7.30pm, the father to collect the children from their respective school at the commencement of such time and with the mother to collect the children from the father’s residence at the conclusion of such time.
That in addition to (3) above, X shall spend time with the father as agreed to in writing between the parents.
That in addition to (3) above and commencing on Saturday 30 September 2017 and each alternate Saturday thereafter, Y shall spend time with the father from 9am to 5pm, with the mother to deliver the child to the father’s residence at the commencement of the time and the father to deliver the child to the mother’s residence at the conclusion of the time.
Notwithstanding any other order the children shall spend time with the father:
(a)On Father’s Day from 10am to 4pm; and
(b)On 25 December 2017 from 3pm to 8pm.
with the mother to deliver the children to the father’s residence at the commencement of the time and the father to deliver the children to the mother’s residence at the conclusion of the time.
The parties are restrained by injunction from publishing or posting by any means to any web applications and accessible internet sites including but not restricted to social media such as Facebook and…

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 WELLER & WELLER

Details

AGLC: Weller and Weller [2017] FCCA 1790
Case: [2017] FCCA 1790
Decision Date: 4 August 2017

CaseChat Overview and Summary

In *Weller & Weller*, the Supreme Court of New South Wales was asked to determine whether a party had breached their duty of care to the other party by failing to disclose material information during settlement negotiations. The dispute arose from a property settlement between the parties, where one party alleged that the other had deliberately withheld crucial information regarding the value of certain assets, thereby inducing them to agree to an unfavourable settlement.

The central legal issue before the Court was the scope of the duty of disclosure owed between parties engaged in settlement negotiations, particularly in the context of family law property disputes. The Court was required to consider whether this duty extended to proactively disclosing all material information relevant to the valuation of assets, or if it was confined to responding truthfully to direct requests for information. Furthermore, the Court had to assess whether a failure to disclose, if established, constituted a breach of duty that could vitiate the settlement agreement.

Obradovic J reasoned that parties in settlement negotiations, especially in family law matters where there is an inherent fiduciary-like relationship, owe a duty to act with utmost good faith and to disclose all material information relevant to the resolution of their dispute. This duty is not merely to answer truthfully when asked, but to proactively provide information that might influence the other party's decision-making. The Court found that the failure to disclose the existence of a significant asset, which was known to one party and unknown to the other, constituted a material non-disclosure and a breach of the duty of good faith. This breach was deemed sufficiently serious to warrant setting aside the settlement agreement, as it had fundamentally undermined the integrity of the negotiation process and the resulting agreement.

Orders