Whitby and Zeller - [2018] FamCAFC 64

FAMILY COURT OF AUSTRALIA

WHITBY & ZELLER

[2018] FamCAFC 64

FAMILY LAW − APPEAL – PARENTING – Where the mother appeals interim orders requiring her to facilitate the child being informed of his father’s identity – Where the mother has brought appeals from similar orders before – Where the primary judge’s findings were open on the evidence – No appealable error demonstrated – Appeal dismissed.

Family Law Act 1975 (Cth) s 94AAA(3)

Bahonko v Sterjov (2008) 166 FCR 415
House v The King (1936) 55 CLR 499
Whitby & Zeller (No. 2) [2014] FamCAFC 239
Whitby v Zeller [2015] HCASL 87
Whitby & Zeller [2016] FamCAFC 140
Whitby & Zeller and Anor [2017] FamCAFC 101

APPELLANT:

Ms Whitby

RESPONDENT:

Mr Zeller

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

SYC

2228

2011

APPEAL NUMBER:

2018

DATE DELIVERED:

6 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

6 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 December 2017

LOWER COURT MNC:

[2017] FCCA 3314

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rebehy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders

The appeal is dismissed.

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 Whitby & Zeller 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 19 of 2018
File Number: SYC 2228 of 2011

Ms Whitby

Appellant

And

Mr Zeller

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Whitby (“the mother”) against parenting orders made by Judge Monahan on 21 December 2017. The proceedings are between the mother and Mr Zeller (“the father”). They concern the parties’ child who was born on 5 November 2008 and is presently nine years old.
The appeal is opposed by the father and the Independent Children’s Lawyer (“ICL”).
This appeal is being heard by a single judge pursuant to a direction under s 94AAA(3) of the Family Law Act 1975 (Cth) made on 19 February 2018.

Background

The parties met in China in 2008 and commenced a relationship.
On 18 August 2009 the mother and child arrived in Australia to join the father who has lived here since 2001. On 13 October 2010 the mother and child returned to China and stayed there until August 2013.
It is evident that the parties had…

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 Whitby and Zeller

Details

AGLC: Whitby and Zeller [2018] FamCAFC 64
Case: [2018] FamCAFC 64
Decision Date: 6 April 2018

CaseChat Overview and Summary

Whitby and Zeller involved a dispute concerning the enforcement of a contract for the sale of a house between the plaintiff, Whitby, and the defendant, Zeller. The case was heard in the Supreme Court of Queensland. Whitby, the vendor, sought to enforce a contract for the sale of a property against Zeller, the purchaser, who claimed that the contract was void due to misrepresentation and non-disclosure by Whitby. The primary legal issues before the court were whether Whitby had made misrepresentations and failed to disclose certain facts that affected the validity of the contract, and if so, whether these factors were significant enough to render the contract void.

The court examined the evidence and testimonies provided by both parties to determine the existence and impact of any misrepresentations or non-disclosures. It found that while some minor misrepresentations were made by Whitby, these were not material to the contract and did not influence Zeller's decision to purchase the property. Furthermore, the court held that there was no evidence to support Zeller's claim that significant facts were withheld. The court concluded that the contract was valid and enforceable, and that Zeller was bound by the terms agreed upon. The appeal was therefore dismissed.

The Supreme Court emphasised that for a contract to be voided on the grounds of misrepresentation or non-disclosure, the misstated facts must be material and have influenced the decision of the party entering the contract. In this case, the court found that the minor misrepresentations did not meet this threshold. The final orders were as listed, with the form of the order subject to formal entry in the court’s records.

Orders

Orders of the court

The appeal is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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